Daniel Njuguna Muchiri v Barclays Bank Of Kenya Ltd & Attorney General [2016] KEHC 2049 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

CIVIL CASE NO.  116 OF 2003

DANIEL NJUGUNA MUCHIRI.......................................PLAINTIFF

VERSUS

BARCLAYS BANK OF KENYA LTD...................1ST DEFENDANT

THE HON. ATTORNEY GENERAL.....................2ND DEFENDANT

JUDGMENT

CLAIM: damages for malicious prosecution; false imprisonment; abuse of legal process; defamation;

1. By  a plaint  dated  5th February  20003  and filed  in court on 6th February  2003  and re amended   on 23rd April  2004, the plaintiff   Daniel Njuguna   Muchiri  instituted   this suit against  the defendants  Barclays Bank  of Kenya Ltd  and The Honourable Attorney General seeking for general damages, special damages, exemplary  and punitive  damages, costs of the  suit, interest  and any other or further  relief  as the court  may deem fit  and just to grant.

2. The plaintiff’s claim against the   defendants  jointly and severally is premised on the allegation that on or about  the  17th day of June  2000 the police, being agents or servants of the Attorney General on behalf of the Government of Kenya, acting on information provided by the 1st defendant’s  agent  Charles Gathiru, maliciously, and  without  reasonable  cause preferred  before the  Chief Magistrate’s Court at Nairobi charges  against  the plaintiff  accusing him of stealing Contrary to Section 275  of the Penal Code,  obtaining  money by false pretences  contrary to Section 313 of the Penal Code, attempting  to obtain by false  pretences  contrary to Section 313  as read with  Section  389 of the Penal Code, uttering false  document contrary to Section  353 of the Penal Code  and handling  stolen goods  contrary to Section 322  of the Penal Code  and that they caused  the plaintiff  to be  arraigned  in court and   prosecuted   for the said criminal offences.

3. It  was further  pleaded that during the process of  the purported  investigations  and arrest, the police harassed and  humiliated  the plaintiff and  denied  him the right  to legal representation by counsel  when the  plaintiff presented  himself   to the police on the 15th and  16th June  2000 and during his  detention  at Kamukunji  Police Station from  the evening  of 17th June  to 19th  June 2000.

4. It  was further alleged that the 2nd defendant  maliciously and without reasonable  and probable  cause continued  to prosecute the  charges against  the plaintiff before  the Chief Magistrate’s Court and   caused  the said court  to commit the  plaintiff  for trial  at the Chief Magistrate’s Court  for a period of almost  two years.

5. It  was further averred that   the  1st defendant’s agents  recorded  statements  with  the police  implicating  the plaintiff   of the charges and provided  witnesses to give evidence against  the plaintiff  during the trial and that  it is  as a result of  the complaints  made by the 1st defendant   that the plaintiff  was charged  and  prosecuted by the 2nd defendant's agents/servants.

6. Further, the plaintiff averred in his  pleadings  that the 1st defendant  acted  unreasonably and  was actively  and maliciously involved and instrumental in investigating   as  well as supporting the  prosecution against  the plaintiff.

7. In addition, it   was alleged that the  two  defendants   collaborated  to unlawfully  and wrongfully arrest  and detain the  plaintiff  for an unreasonable   period of time during   which the plaintiff  suffered  immense  physical and mental torture, pain and anguish.

8. It is further alleged  that  the defendants  acted jointly  and fabricated  the criminal charges  against  the plaintiff  and  proceeded  to prosecute   him without  any reasonable basis  and that  on 6th June  2002  the plaintiff was acquitted  of the said charges.

9. The plaintiff  also claimed  that  on 20th June  2000  the defendants  falsely, maliciously and wrongfully published or  caused the publication of an article  which is highly  defamatory of the plaintiff  in the Daily Nation of  20th June  2000 entitled  “ man charged  with theft”stating that: “A Firestone employee was yesterday charged with stealing three cheques   worth over   shs 2 million shillings    from the Barclays Bank.  Mr Daniel Njuguna Muchiri appeared before the Chief Magistrate Boaz Olao and denied committing the   offence on September last year in Nairobi.  The accused    was released on a shs 100,000 bond.”

10. The plaintiff  claimed that  the above publication  was in their  natural and  ordinary meaning calculated  to mean  and meant  that the plaintiff is a thief, dishonest , a fraudster  and unprofessional  who  is  unworthy  and unfit of the office of  General Accounting   Manager.

11. The plaintiff claims that he is a  person of high moral and  professional standing, enjoyed esteem  and respect  from his peers  and socially, and  that the article discredited  his good  way and  reputation.  That the publication  was  malicious  and calculated  to  and  did injure, disparage and lower his esteem among right thinking members of the society generally, since the publishing  newspaper  enjoys  wide  readership in Kenya, Uganda and  all over the world including its distribution  through  the internet.

12. The plaintiff  claimed that  all the aforestated  matters greatly injured him  in his credit, character  and reputation and that he  suffered severe mental anguish  and pain, has been  brought to  public  ridicule, scandal, contempt  and that he incurred expenses   in defending  himself  and suffered  loss and  damage.  He claimed for

a. Legal fees shs  59,000

b. Travelling expenses shs  10,000

13. In the re amended  plaint filed  on 23rd  April  2004, the plaintiff set  out particulars  of malice on the part of the defendants  and also withdrew  the claim for  damages for  defamation.  He however  pleaded for general damages for false imprisonment, malicious  prosecution and  abuse  of the legal process, special  damages   of shs  69,000; and exemplary  damages for  false imprisonment, malicious  prosecution and abuse of  the legal  process.

14. The 1st defendant  filed  a second  further amended  defence   with leave of  court on 15th November  2007 denying the  plaintiff’s claim that  it maliciously  and falsely  and without  any reasonable   or justifiable  cause  made a false  report to the Central Bank of Kenya Anti-fraud Police Unit  alleging  that the plaintiff had indicated  to the 1st defendant that he  was  holding the original cheques  and would send them in due course  through Charles Gathiru  or at all.

15. The 1st defendant further contended  that  if at all it made any report  aforesaid  then it did  so out  of its  civic duties  to do so because it had reasonable  cause to believe  that cheques  had been  misappropriated.  The  1st  defendant  also  stated that  in HCC 509/2001 it sued  Owen  Thiong’o Kariuki and Mike Thiong’o Kariuki  for the  amount  value of the cheques  and  recovered the said money successfully.

16. The  1st defendant  also contended that  the 2nd defendant carried out its own independent  investigations into the matters complained of  and made an independent  decision  to charge  the plaintiff  and that it  never instructed  the 2nd defendant    to  instigate the charges  against  the plaintiff.

17. The 1st defendant   also contended that as the trial magistrate in criminal case No. 437/2000 found that the plaintiff had a case to answer, then the report made by the 1st defendant could, in the circumstances not be false or malicious.

18. The  1st defendant  further stated in  its defence that  it  was under  a civic duty  to record   statements  and provide witnesses   who had  been bonded  to attend court to  give evidence   during the criminal  trial.  It denied that the charging and prosecution of the plaintiff was occasioned   by the complaints made by the 1st defendant.

19. The 1st defendant   also denied  ever publishing  the article  in the newspaper  and further that in  any event, the plaintiff’s  claim  based on the alleged  publications was statute barred  under  the Limitation  of Actions Act.

20. The 1st defendant denied the particulars of special damages and maintained that the plaintiff is not entitled to general, special or exemplary and punitive damages. The 1st defendant prayed that this suit should be struck out for being bad in law.

21. The  2nd defendant   Attorney General  entered an appearance  on 12th March  2003  and filed defence  on 16th June  2003   contending that   the suit herein   is bad in law  as it contravenes  the mandatory  provisions  of Section 13A of the  Government  Proceedings  Act Cap 40 Laws of  Kenya.  The 2nd defendant  denied that  the plaintiff  was  maliciously  prosecuted  but averred that  if the  plaintiff  was  arrested  and charged which   is denied  then the same   was done  after a proper  complaint had been  made to the police, the complaint  investigated  and reasonable  or probable  cause established  that he had  committed a criminal offence. Further, that the police were carrying out their public and statutory duties.

22. The 2nd defendant further denied allegations by the plaintiff that the police harassed and humiliated him and or that they denied him the right to be represented by counsel.  The 2nd defendant denied acting in collaboration with the 1st defendant   to fabricate charges   against the plaintiff.  It also  stated in the defence that  a mere acquittal  does not  divest  the defendants from carrying out their legal duties to arrest   and prosecute probable  offenders  upon  establishing  a reasonable  cause that   an offence   has  been committed  or is  likely to be committed.  They also denied publishing or causing to be published defamatory article of and concerning the plaintiff in the Daily Nation.  The 2nd defendant further denied that the plaintiff suffered loss and damage or any special damages and prayed for dismissal of the suit with costs.

23. The plaintiff’s  counsel filed  reply to the defendant’s defence  reiterating  the contents  of the plaint and maintaining  that the arrest and prosecution of the plaintiff   was actuated  by  malice  and that it  was without any  reasonable   or probable  cause.

24. The suit proceeded to hearing on 1st March 2016   with the plaintiff Mr Daniel Njuguna Muchiri testifying   as PW1 that he was aged 52 years and works in the Jua Kali sector.  He is a graduate with a Bachelor of Commerce in 1989 and has a Post graduate Diploma in Financial Management from Kenya School of Monetary Studies in 2000.  That at the material time of this cause, he   worked as a General Manager, Accounting and Finance with Firestone East Africa Company a subsidiary of Firestone and Water International Company.  He  was  in charge  of all financial transactions in the East African region  which responsibilities  included Data Management, payment  of Dividends  to shareholders  and settlement  of debts, among  others.

25. The plaintiff  relied  on and adopted  his witness  statement  filed on 22nd  May  2014  as his  evidence in chief. According to the plaintiff, Firestone  EA, which  was his employer  had Bank Paribas  which  was   a Swiss based shareholder  from Geneva Switzerland,  which had invested  4. 5 million shares  in the Firestone  EA.  The latter had its Registrars, Barclays Bank of Kenya, who maintained a Register of all shareholders with instructions to pay dividends to the shareholders.  That in September 1999, Firestone EA declared dividends.  Banque Paribas Suissie SA which  was  an  international shareholder  instructed  Barclays  Bank of Kenya  to pay  Banque Paribas Suissie SA in Swiss Francs  since it  was  a foreign investor.  Instead, Barclays  Bank of Kenya   send cheques to the foreign shareholder Banque Paribas in Kenya shilling currency who returned  the said cheques  for replacement  with the  cheques  in Swiss Francs.

26. That the plaintiff received a letter from the Banque Paribas Suissie  SA stamped 16th December  1999, being the second reminder from Banque Paribas Suissie  SA alerting  Firestone  EA  that  a mistake had been made in paying them in Kenya shillings instead of  Swiss Francs. That upon receipt of that letter, the plaintiff immediately wrote to the Barclays Bank of Kenya, the 1st   defendant herein, forwarding the copies of returned cheques and asking the 1st defendant   to ensure that   Banque Paribas Suissie  SA were paid in Swiss Francs. That upon receipt   of  the said cheques, the  1st defendant, through   Mr Charles  Gathiru  called the plaintiff   asking the whereabouts of the original cheques and the plaintiff   informed  Mr Gathiru  that the letter  he had received   was a second  request  for payment   in Swiss  francs  by the shareholders.

27. The plaintiff testified that he later received a copy  of letter  from the 1st   defendant confirming  that the  1st defendant   had now paid  the shareholder  in Swiss  Francs  following  the plaintiff’s intervention.

28. That on 22nd February 2000, the plaintiff received a call from the Company Secretary of Barclays Bank saying that there was a problem in the dividends account and asked the plaintiff to see Mr Kivuva, the bank’s internal auditor.  That the said Mr Kivuva however visited the plaintiff at his place of work and inquired on the whereabouts of the original dividends cheques issued to the international shareholder.

29. According to the plaintiff, the 1st defendant being Registrars, they were to send the cheques directly   to the shareholders.  That Mr Kivuva informed  the plaintiff  that  the dividends account  had been  overdrawn  because some  people  had presented  the original cheques   meant for   Banque Paribas  Suisse SA and  had been  paid through  Family Finance Bank.

30. That on 6th June 2000, the plaintiff was called from his office by the Human Resource Manager who informed the plaintiff that the Anti-Fraud Police Unit   officers   were present and wanted to interview the plaintiff. That the officers were Yegon and Wanjala.  The two police officers invited the plaintiff to record his statement on 16th June 2000 regarding the suspected fraud. That when the plaintiff  went to see  the said police officers  as scheduled at 5. 30 pm  on 16th June  2000, he  was  ushered  into a room and told that  he had  been lying   to Barclays  Bank  yet he  knew where  the original  cheques  were.

31. That after questioning and harassing the plaintiff, the Anti-fraud officers released him and ordered him to return for statement writing   the following day.  That the plaintiff became apprehensive and enlisted the presence of his lawyer Mr Wilfred Nderitu.  When the officers saw Mr Wilfred Nderitu, they questioned the plaintiff why he had gone there  with an advocate yet he   was a prosecution witness.  That Superintendent Muindi told Mr Wilfred Nderitu to leave which he obliged.

32. That no sooner had the plaintiff’s   lawyer left than the police officers changed their story and told the plaintiff that he was being charged with stealing.  They took his finger prints, and told him that he was to be detained until Monday.  The plaintiff called his family, friends, and his advocate Mr Wilfred Nderitu, instructing them to meet him at Kileleshwa Police Station on Monday since the police officers told him that he would be detained at Kileleshwa Police Station.  That the officers confiscated the plaintiff’s car keys   and drove it into Ukulima Co-operative House Basement.  They  walked him  down Haille Selassie  Avenue  and proceeded  to Kamukunji  Police  station  where they locked him up in the cells and took away  his mobile phone  so that he   could not communicate  with his family or his Advocate.  That Mr Yegon told the OCS and police officers at Kamukunji   Police Station that the plaintiff was a hardened criminal who should be disciplined as appropriate.  That the plaintiff was locked   up in a cell with over 10 people in a 10 x10 fit cell with no water, it was smelly and with no space to sit or sleep.  That on the following day, street children were brought   in the cells and kept with him.

33. The plaintiff testified that on 19th June  2000 morning hours, Yegon the police officer collected  the plaintiff from Kamukunji Police Station and took him to Ukulima  Co-operative House  and told the  plaintiff that  he  was being  charged with stealing the  3 cheques.  The plaintiff was then arraigned   before the Chief Magistrate’s Court at Nairobi   where he took the plea, denied the charges and was bailed on a shs 500,000 bond.  He was released at 7. 00pm the same day.  He went for his car keys at Ukulima Co-operative House and drove to his Buruburu House.  The following day, the plaintiff   saw the caption in the Daily Newspaper that “man charged with theft” which publication deflated the plaintiff who called his Director at Firestone EA and his mother.

34. That the criminal case took two years to be concluded.  The plaintiff was finally acquitted but after suffering humiliation and lost reputation in the public.  That when  his contract  at Firestone East Africa  ended, it  was  never renewed  since the  company   was  uncomfortable  with  him especially  with the  new Japanese  owners  who took over  the management  and ownership from the American  investors.  That the plaintiff sought employment   elsewhere since he was then only aged 34 years earning   shs 150,000 and other fringe benefits but that it was not possible for him to get alternative employment with similar benefits. That the other people, Owen Thiongo and Mike   Thiongo   were also charged with the same offence after their case was consolidated with the plaintiff's case.  He was acquitted in 2002.

35. The plaintiff further testified that Firestone  East Africa  never kept  any records of  clients’ dividends  and stated that  this  was not the first time  the  1st defendant    was acting   as the Registrars  for Firestone  East Africa in the  payment of  dividends  to Banque  Paribas.  He stated that he never  knew the two Thiongos  ( his  co-accused) and that  the  1st  defendant never   sued him for recovery  of  the money  cashed through the  three  stolen  cheques.  The plaintiff lamented that the accusations by the defendants destroyed his career and dreams   of becoming a Chief Executive Officer by age 40 hence he   was   forced to remain in the private   sector.  He maintained  that if Barclays  Bank had  not made a false   report that  he had stolen the cheques, he could not have been arrested  and charged and that despite the police promising  him that he would be a prosecution witness, they charged  him with  a criminal offence  that he had  nothing to do  with.

36. The plaintiff prayed for general damages for false imprisonment, malicious prosecution,defamation and abuse of legal process as well as special damages.  He also sought for exemplary damages for the mistreatment, costs and interest.  He produced  as exhibits  documents  contained in his list and bundle dated  28th April 2014  and a supplementary  list dated  25th February  2016  which are:

1. Copy  of excerpt   from Daily  Nation Newspaper  of 20th June  2000 page  4   headed “ man  charged  with  theft.”

2. Copy of a letter dated 16th December, 1999 signed by Daniel N. Muchiri of Firestone to Mr Charles Gathiru of Barclays Bank of Kenya Ltd.

3. Copy  of letter  dated  14th September  1999  from  Paribas ( Suisse) SA  to Firestone  East  Africa (1969) Ltd.

4. Copies of Dividend Notice of copies   of cheques Nos. 1-3   in favour of Banque Paribas (Suisse) S.A. account dated 31st August 1999.

5. Copy of   a letter from Paribas (Suisse) SA to Firestone East Africa Ltd received on 24th March 2000.

6. Copy of a letter dated 6th January 2000 from Barclays Bank of Kenya Ltd to Banque Paribas, Geneva.

7. Copy of a letter from Mr Daniel No.  Muchiri of Firestone East Africa Ltd to the Manager Banque   Paribas dated   22nd February 2000.

8. Copy of a letter dated 26th July 2000 from Donald B. Kipkorir for Kipkorir, Titoo & Kiara Advocates to the Financial Controller, Firestone E.A. (1969) Ltd.

9. Copy  of a letter  dated  20th July 2000 from Albert Ruturi  of Barclays  Bank of Kenya  Ltd  to Mr Fauzia  B. Shah  of Firestone  E.A. (1969) Ltd.

10. Copy of a letter dated 25th July 2000 from Daniel Muchiri of Firestone E.A. (1969) Ltd to Mr Donald Kipkorir.

11. Copy of a fee note   dated 13th June 2002   from Donald B. Kipkorir to Firestone E.A. (1969) Ltd.

12. Copy of  a pay slip for January 2000 for Daniel N. Muchiri  from Firestone E.A (1969) Ltd

13. Copy of  a pay slip for May  2000 for Daniel N. Muchiri  from Firestone E.A (1969) Ltd

14. Copy of surety bond by Peter Gitonga Mugambi, dated 19th June 200 for kshs 500,000.

37. In cross examination by Mr Kimani counsel for the 1st defendant, the plaintiff responded that it is the   police who informed him that he would be charged.  He also  stated that  on 22nd February 2000 he  received  a call from Ms  Mugera  that  Mr Kivuva, the 1st  defendant’s  internal auditor  wanted to see  the plaintiff.  The  plaintiff also  stated that  when he met  Mr  Kivuva, the latter  told him that  there  were  investigations  ongoing in Barclays  Bank to establish where the  original cheques   had gone  and that Chares Gathiru  was  a witness for  Barclays Bank.

38. The plaintiff denied that  he told  Charles  Gathiru  that he  would  send original  cheques, insisting  that that could not  have been  the position   since the letter  from  Banque  Paribas  dated 8th December  1999  was clear that it  was a second  request on payment.  He stated  that his contract  of  employment   was  renewable  but it  was not renewed after it  ended and there  was  change of  management at Firestone E.A.

39. The plaintiff maintained that his prosecution was initiated by Barclays Bank and that the three cheques did not originate from Firestone East Africa.  He stated  that Mr  Kivuva  told him that  the  police  were investigating  the matter  and that the police  must have  interviewed  Barclays  Bank Employees  before interviewing  the plaintiff on  the lost cheques.  He stated that  the police must  have been  given  false information that the plaintiff  had the original  cheques  and that if he had the  intention  to steal  the cheques, he could  not have  asked   Barclays  Bank  to correct  their  mistakes.  He also confirmed that the trial magistrate blamed the investigating officer and their superiors.

40. On being  cross examined  by Miss  Kerubo counsel for  the 2nd defendant, the plaintiff  stated  that it is  Barclays  Bank  which complained to the police  against him.  He  denied that  investigating  officers   were known  to him before  6th June  2000  when they  visited Firestone  East Africa  and asked  him to go to their  offices   on 15th June  2000.  The plaintiff also stated that the investigating    officers told him that Barclays Bank had informed the police officers that the plaintiff had information as to the whereabouts of the original cheques.

41. The plaintiff maintained that there   was malice in charging him since he had given a plausible explanation on the issue   of the 3 cheques.  Further, that the investigating officers had also interrogated   other Firestone   management and been informed that the cheques never originated from Firestone. E.A He maintained that he issued notice of intention to sue the Attorney General.

42. On being re-examined by Mr B.M. Musau, the plaintiff maintained  that he served  on the Attorney General notices  of intention to sue  which  was  dated 8th November  2002   and as received  on 11th November  2002  by Office of the Attorney General and which  was produced  as PEX 16 without any  objection.  The plaintiff restated that by taking him to Kamukunji Police Station instead of Kileleshwa Police Station, the police were hell bent to make him suffer since they had initially told him assuredly that he was a prosecution witness.

43. Further, that the statements that the investigating officers made while at Kamukunji Police Station that the plaintiff   was a dangerous criminal was malicious.  He  stated that  court attendances  affected  his career progression because   the new  management   at Firestone could  not comprehend  how a  senior manager  like him  was a suspect  in a theft case.  He also maintained that he believed his contract would have been renewed had it not been for the criminal case.

44. Further, that Barclays  Bank issued  cheques  in Kenya shillings   knowing  very   well that  those cheques  could not be  encashed  in Geneva, Switzerland   hence they are   the ones   who perpetrated  the fraud .

45. The 1st defendant Barclays Bank of Kenya called one witness DW1 Mr Waweru Guandaru Mathenge, its Head of Legal and Secretarial Services.  DW 1 stated that he was an Advocate of the High Court of Kenya.  He had   worked for Barclays Bank for 9 years and was aware of the matters relating to this case from their file records.  He adopted his witness statement filed in court and signed on 19th February 2016 as his evidence in chief.

46. According to the 1st defendant’s  witness’ corrected  statement with leave of the court, the three  cheques  were send to the intended  beneficiary  but  were   returned to Firestone  and the 1st defendant Bank   later   learnt that they had been  encashed.  He admitted that the Bank provided Advisory Registrar Services for disbursement of dividends to Firestone East Africa.  That upon  discovery that the cheques  has been cashed, the bank instituted  internal investigations  and  upon confirming  that the 3 cheques  had been cashed  through Family Bank, it complained to the police who instituted  their own investigations.  He denied   that they complained   against the plaintiff.  He however conceded that the plaintiff   was one of those accused of stealing    the three cheques   and later acquitted of the charges.

47. DW1 stated that   the trial magistrate in his judgment castigated the investigating officers for acing   maliciously and fabricating   the case against the plaintiff without cause.  He maintained that  there    was  a sound basis for lodging  a complaint  against  the plaintiff  because  the cheques   were converted  and it  was  upon the police to investigate.  He also revealed that Barclays Bank sued Owen Thiongo Kariuki and Mike Thiongo Kariuki and recovered and all the money value of the stolen cheques.

48. On cross examination  by Mr  B.M. Musau  counsel for  the plaintiff, DW 1  stated that  he had  worked for the  1st defendant  for the last  9 years  and that he   had familiarized  himself  with  documentation  relating to this  case.  He stated that it  was  possible  for   one shareholder  to have   3 different  accounts  hence the issuance  of 3 cheques  to Banque Paribas Sussie SA although he did  not  know why the  3 cheques  were  issued to  Banque  Paribas in Kenya  shillings.  He also  did not  know if  the Barclays Bank issued  only one cheque  to replace  the  3   stolen cheques. He also confirmed that the stolen cheques were issued  in Kenya shillings although  the instructions  were  that the  cheques  should be  issued  in  Swiss  Francs  or in US Dollars.

49. The  1st defendant’s  witness  also confirmed  that it  was the plaintiff who  alerted  the  1st  defendant Bank  that the  latter  had made  a mistake  by issuing   3 cheques  instead  of one cheque  and  that it   had issued  the  said  3  cheques  in Kenya currency  instead of  foreign currency  as instructed.  DW1 also confirmed  that at the  time the  plaintiff raised  the issue  with  the Bank, the said  cheques    had not  been cashed  and so the bank issued  a replacement  cheque  in Swiss  Francs.  He agreed  with Mr BM Musau advocate that the  Bank should have  stopped  the payment of the  3  cheques  or called  for and  cancelled  the  original  cheques.

50. DW1further testified that  from the records, the  3 cheques   were replaced  without  being  stopped  for  payment  although  he denied  that there   was a preconception of fraud.  He confirmed  that there   was no evidence  pointing  specifically to the  plaintiff as  the person  who perpetrated  the conversion  of the 3 cheques   and that the  bank  does not know why the plaintiff  was charged.

51. On being shown PEX9, a letter   dated 29th July 2000   from A. Ruturi to Firestone the 1st defendant’s witness stated that indeed it must have reached the top management of the Bank.  He also conceded   that the Bank sued two of the accused persons for recovery and recovered   the money converted.

52. In cross  examination by Miss Kerubo counsel for  the second defendant, DW1 conceded  that in the criminal case, Barclays  Bank was the  complainant   and source of  the  information  that led to the charges  being brought  against the  plaintiff and  two others, concerning  the theft  of the three cheques.  He however stated that he could not tell if the police were malicious in charging   the plaintiff.

53. In re-examination by Mr Kimani, DW1 stated that the Bank complained about the 3 cheques and their conversion.  He stated that Firestone   was the Bank’s customer while Banque Paribas Sussie SA  was the shareholder of Firestone.  He also stated that the Bank owed a duty of prudence to Firestone, its customer and not to Mr Muchiri, the plaintiff herein.  DW 1 could also not verify any negotiations between the Bank and Firestone to settle the criminal case against the plaintiff out of court.

54. The 1st defendant's witness maintained that the Bank had no powers to prosecute the plaintiff but only lodged a complaint for   further investigations by the police.  He also maintained that the Bank never made any specific complaint against the plaintiff.  He concluded that the Bank sued the owners of the accounts at Family Bank.

55. At the close of  the  1st defendant’s  case, the 2nd defendant’s counsel  closed her client’s case   with no  witness to call, intimating   that the police  were not  co-operating for  the last  13 years.

56. Parties then filed written submissions to assist the court make its determination in this matter.  The  plaintiff’s  counsel filed   his submissions  on 25th April  2016; the 1st defendant’s  submissions   were filed on  28th April 2016   whereas  the 2nd defendant’s  submissions  were filed  on  25th April  2016.

57. In the plaintiff’s  lengthy but useful submissions, his  counsel Mr B.M.Musau  submitted setting out the following issues for determination:

1. Whether the criminal proceedings were instituted by the Defendants.

2. Whether the prosecution was actuated by malice.

3. Whether there was reasonable cause and/or justification to make the complaint to the Police and prosecute the Plaintiff.

4. Whether the criminal proceedings terminated in the Plaintiff’s favour.

5. Whether the Plaintiff suffered loss as a result of the malicious prosecution.

6. Whether the Defendants jointly and severally are liable to compensate the Plaintiff.

58. The plaintiff’s counsel commenced his submissions by answering the question on the  elements of the tort of  false imprisonment and as to whether the plaintiff had proved that those elements exist in this case. Counsel submitted that there are three elements required to be proved namely:

a. The unlawful restraint of another

b. Against their will, and

c. Without legal justification.

59. The Plaintiff’s counsel submitted that his client was  without a justifiable and probable cause, held in Police cells for three days. That he was tricked and transferred to Kamukunji Police Station from Kileleshwa Police station where he could not be accessed by his friends and relatives. Reliance was placed on the case of Samson Mugo Siiya v Ismael Suleiman Jama & 2 Others [2007] eKLR, citing  Halsbury’s Laws of England 4th Edition page 606 where the court stated that:

“According to Halsbury’s Laws of England 4th Edition page 606, the learned authors have described false imprisonment in the following terms:

“Any total restraint of the liberty of the person, for however short a time, by the use or threat of force or by confinement, is an imprisonment. To compel a person to remain in a given place is an imprisonment, but merely to obstruct a person attempting to pass in a particular direction or to prevent him from moving in any direction but one is not.

The gist of the action of false imprisonment is the mere imprisonment. The plaintiff need not prove that the imprisonment was unlawful or malicious, but establishes a prima facie case if he proves that he was imprisoned by the defendant; the onus then lies on the defendant of proving a justification.”

60. The plaintiff’s counsel also relied on  Daniel Waweru Njoroge & 17 Others v Attorney General [2015] eKLR where the Court extensively discussed the elements of false imprisonment as follows:

“The gist of an action for false imprisonment is unlawful detention, without more. The commonly accepted definition of false imprisonment defines the tort as:

a.The unlawful restraint of another

b.Against their will, and

c.Without legal justification.

Proving the first element of false imprisonment involves looking at the facts whether there was any force or threat of some kind used in restraining the accusing party. It is important to note that actual force is not necessary. Proving the second element of false imprisonment involves applying ‘reasonable person’ standard. Thus, the court will determine whether a reasonable person in the same factual situation would believe that they have been detained against their will. The final element of false imprisonment involves determining whether there is a legal basis for the detention. Many legal bases for detention do exist such as a lawful arrest by law enforcement. Determining whether probable or a legal basis for the detention exists is the key in false arrest cases.”

61. The plaintiff also cited Harper & James in their book, The Law of Torts where the learned authors state that false imprisonment must include the following elements, namely:-

a. There must be detention, i.e. unlawful restraint of a person’s liberty or freedom of movement.

b. That the detention needs not be forceful. Threats of force by conduct or words coupled with the apparent ability to carry out such threats are sufficient.

c. Detention must be total, i.e. it must be within boundaries. The restraint must be total rather than a mere obstruction of the right to go where the plaintiff pleases. Imprisonment is something more than a mere loss of freedom to go where one pleases; it includes the notion of restraint within some limits defined by a will or power exterior to our own.

d. Detention must be for an appreciable time, however short. In Prosser on Torts, it authoritatively stated that the tort is complete with even a brief restraint of the plaintiff’s freedom.

e. The detention must be unlawful and must have been against the plaintiff’s will.

f. Malice is not an ingredient in the tort of false arrest”.

62. The plaintiff maintained that it is Barclays Bank, the first defendant herein caused his arrest by filing a false and untrue complaint against him with the State agency, namely the Police, and that in satisfaction of the key elements for this tort, the Plaintiff had proved that he had been unlawfully restrained ; that he was subsequently locked up in the Court Basement Cells until 7 pm when his bond was eventually processed; that the restraint was quite unlawful because both Barclays Bank and the Police knew too well that the Plaintiff was innocent as he is the one who brought the offence to the attention of Barclays Bank through Mr. Charles Gathiru both in writing and through the telephone conversations; that the restraint was clearly against the Plaintiff’s will in that he would not leave while he was locked up in the Wakulima Cooperative House Offices and the Police Station at Kamukunji and at the Court Basement Cells; that the  restraint of the Plaintiff by the Defendants was without a legal basis in that both Defendants knew that he is the one who brought the attempted stealing to the notice of Barclays Bank; that the plaintiff was detained by the Defendants i.e. that they unlawfully deprived him of his liberty and his freedom of movement; that in order to prove the detention of the Plaintiff by the Defendants, the Plaintiff need not prove that the detention was forceful; that the Plaintiff has clearly illustrated that the detention was total, i.e. he was confined within the boundaries of Wakulima Cooperative House Offices and Kamukunji Police Station as well as the Court Basement Cells and the Police made sure that he could not be visited throughout that weekend at the Kamukunji Police Station when they deceived him that they were going to detain him at Kileleshwa Police Station. The restraint was total and it was not a mere obstruction of the right to go where the Plaintiff pleased. That the Plaintiff’s particular imprisonment was something more than a mere loss of freedom to go where he pleased; it included the notion of restraint within some limits defined by a will or power exterior to the Plaintiff’s own.  That the will or power exterior here is that of Barclays Bank and the Police, the Defendants who are, therefore, responsible for this false imprisonment jointly and severally; that the Plaintiff has shown that the detention was for an appreciable time, and in fact not short, the whole weekend and the previous restraints and subsequent restraints at the Court Basement Cells.

63. It was further submitted that in law, the tort of false imprisonment is complete with even a brief restraint of the Plaintiff’s freedom; that the detention was clearly unlawful and against the Plaintiff’s will; and that malice is not an ingredient in the tort of false arrest and imprisonment.

64. According to the plaintiff, it is clear that he was arrested, without a justifiable cause, against his will and confined in the Police cells. He was, therefore, falsely imprisoned by the agents of the 2nd Defendants at the behest of the 1st Defendant.

65. On the tort of malicious prosecution, it was submitted by the plaintiff’s counsel in extensor that  the plaintiff had proved all the four elements  of the tort of malicious prosecution namely that:

a. the prosecution must have been initiated by the Defendant or their agent;

b. the proceedings must have been terminated in favour of the Plaintiff;

c. there must be an absence of reasonable and probable cause; and

d. there must be malice or a primary purpose other than that of carrying the law into effect.

66. The plaintiff relied on the case of Stephen Gachau Githaiga & Another v Attorney General [2015] eKLR (“Stephen Githaiga case”) in which the Court ruled:

“I find useful guidance in the wise words of Duffus V.P. in the case of Kasana Produce Store v Kato 1973} E.A. 190 at page 191, paragraph G-I where he laid down the ingredients for malicious prosecution as follows:-

a. The plaintiff was prosecuted by the defendant in that the law was set in motion against him by the defendant on a criminal charge. The test is not whether the criminal proceedings have reached a stage at which they may be described as a prosecution but whether they have reached a stage at which damage to the plaintiff result.

b. That the prosecution was determined in the plaintiff’s favour.

c. That it was without reasonable or probable cause-On the evidence the defendant did not believe in the justice of his own case.

d. It was malicious-The defendant had improper and indirect motives in pursuing the false charge against the plaintiff.”

e. “An action for malicious prosecution is the remedy for baseless and malicious litigation…. The criminal defendant or civil respondent in a baseless and malicious case may later file this claim in civil court against the parties who took an active role in initiating or encouraging the original case.”

67. The Plaintiff reiterated that he has established to the court that: He was prosecuted by both Barclays Bank as shown by results of the criminal case in the trial court; that the prosecution was determined in the Plaintiff’s favour; that the institution of the prosecution was clearly without reasonable or probable cause. That the Plaintiff is the one who blew the whistle.  That the Police initially wanted him as a witness but that they changed their mind after Barclays Bank untruthfully alleged that the plaintiff had told them that he had the original cheques, which they had wrongly, carelessly, negligently or deliberately drawn in Kenya Shillings instead of the required USD$ or Swiss Francs.

68. It was also submitted that on the evidence the defendant did not believe in the justice of his own case in that when Barclays Bank’s representative testified in court, he was unable to substantiate the complaint and information that the Bank had given the Police against the Plaintiff and that he  could not justify why the Bank drew the cheques in the first instance in Kenya Shillings knowing too well that the cheques were going to a foreign investor, the Bank Paribas. It was therefore submitted that the plaintiff’s prosecution was malicious in that the Barclays Bank must have had improper and indirect motives in pursuing the false charges against the Plaintiff because they knew that the plaintiff did not have the original cheques as he had forwarded the Bank Paribas’s second request and that as at that time the Kenya Shillings cheques had not been cashed. Further, that infact the Bank issued one cheque in Swiss Francs to replace the three cheques, something they ought to have known long before issuing the three cheques.

69. It was further submitted that  the Police must have been malicious as well because they had been carrying out the initial investigations and had  assured the Plaintiff that they would only use him as a witness as he was the whistle blower.  That their change of mind and the untruthful information they gave to the Officer Commanding Kamukunji Police Station that the Plaintiff was a hard-core criminal, which they knew was untrue as the Plaintiff had never and has since never been involved in any criminal activities.

70. On the tort of defamation (abuse of the legal process), the plaintiff’s counsel submitted thatBarclays Bank and the Police abused the legal process by maintaining criminal proceedings against the Plaintiff which no reasonable person would have maintained against the Plaintiff, and thereby seriously defamed his character. Reliance was placed on the decision by Lenaola J. in  Isaac Anyula Khatete v Joseph Khalwenyi Omwalo [2010] eKLR where the court held that:

“The distinction between an action for malicious prosecution and an action for abuse of process is that a malicious prosecution consists in maliciously causing process to be issued, [while] an abuse of process is the employment of legal process for some purposes other than that which it was intended by the law to effect – the improper use of a regularly issued process. For instance, the initiation of vexatious civil proceedings known to be groundless is not abuse of process, but is governed by substantially the same rules as in malicious prosecution or criminal proceedings.”

71. The plaintiff’s counsel also relied on Samuel Roro Gicheru & another v O.C.S. Nanyuki Police Station & another,where Mativo J. held that:

“The leading case on the application of abuse of process remains Bennet vs Horseferry Magistrates Court & Another. The court confirmed that an abuse of process justifying the stay of a prosecution could arise in the following circumstances:-

a.Where it would be impossible to give the accused a fair trial; or;

b.Where it would amount to a misuse/manipulation of process because it offends the court’s sense of justice and propriety to be asked to try the accused in the circumstances of the particular case.”

72. Further reliance was placed on the decision by Odunga J. in Republic v Director of Public Prosecution & 2 others Ex-parte Francis Njakwe Maina & another[2015] eKLR cited with approval  in Kuria & 3 Others vs. Attorney General[2002] 2 KLR 69 which provides the elements of abuse of the legal process as follows:

“It has to be understood that the pursuit of justice is the duty of the court as well as its processes and therefore the use of court procedures for other purposes amounts to abuse of its procedures, which is diametrically opposite the duty of the court. It therefore matters not whether the decision has been made or not, what matters is the objective for which the court procedures are being utilized. Because the nature of the judicial proceedings are concerned with the manner and not the merits of any decision-making process, which process affects the rights of citizens, it is apt for circumstances such as this where the prosecution and/or continued prosecution besmirches the judicial process with irregularities and ulterior motives. Where such a point is reached that the process is an abuse, it matters not whether it has commenced or whether there was acquiescence by all the parties.”

73. The plaintiff’s counsel maintained that there was no evidence upon which to charge the plaintiff in the criminal proceedings.  That the criminal proceedings were a misuse or a manipulation of the legal process because they offended the court’s sense of justice and propriety to be asked to try the accused in the circumstances that then prevailed indicating no link between the Plaintiff and the stealing of cheques.  Further, that the plaintiff had proved that his arrest and prosecution was motivated by ulterior motives other than what the criminal law was intended. That the criminal proceedings were set in motion against him to deprive him of his liberty, which he was denied when he was incarcerated at Kamukunji Police Station from 16th June, 2000 to 19th June, 2000; to deny him the constitutional right to legal representation at the time of confinement at the cells; to disparage him by damaging his reputation and good name. That his reputation and good name was damaged when a defamatory article was published in the Daily Nation newspaper of 30th June, 2000 as a result of the prosecution proceedings against the Plaintiff.

74. The plaintiff submitted that on the tort of defamation, the ingredients of defamation within the context of the abuse of the legal process are as set out in Joseph Musyoka Kalii v Musyoka Kilatya [2014] eKLR that:

a.First, the words complained of, must actually refer to the Plaintiff;

b.Second, the words must be defamatory i.e. the words must tend to lower or actually lower the character or reputation of the Plaintiff in the eyes of right-thinking members of the society;

c.Third, the words must be published to a third party;

d.Fourth, the words must be false i.e. truth is an absolute defence to an action in defamation arising out of the abuse of the legal process; and

e.Fifth, for slander, there must be proof of resultant damage.

75. It was submitted that the plaintiff had proved the tort of defamation in that: the words complained of, actually referred to him; that he illustrated in his evidence that the words were defamatory of him because they tended to lower and actually lowered his character and reputation in the eyes of right-thinking members of the society generally who included his own mother, family, friends, workmates and members of the Public Service Club and the other clubs that he was a member of; that he also showed that the words were published to third parties who included his own mother, family, friends, workmates and members of the Public Service Club and the other clubs that he was a member of and in the Court proceedings, which were open to all members of the public,; and that he could not rise to his childhood dream of rising to the level of Chief Executive Officer or other advancement of his career and had to lose his employment at Firestone as the Japanese Bridgestone investors could not be amused by the charges and their publication; that he also established that the words were false as they were untrue and both the Defendants knew this ab initio;that none of the two Defendants took advantage of the defense that is available in law to countermand this element.

76. Further, that all those who read or were told about the article were made to believe that the Plaintiff was a thief, which is not true, and that no one would employ the Plaintiff after such disparaging attacks on his reputation which had been initiated into public odium and scandal with far-reaching implications to the disadvantage of the Plaintiff who had suffered immensely and immeasurably.

77. On whether criminal proceedings were instituted by the Defendants the plaintiff submittedthat the evidence showed that the Defendants were actively instrumental in setting the law in motion and consequently led to the damage the Plaintiff suffered of loss of employment, career prospects and advancement. That the Police who are State agents and consequently the agents of the 2nd Defendant at the time acted on the complaint lodged by Barclays Bank and arrested the Plaintiff, arraigned him in court and charged with offences no reasonable person would have charged the Plaintiff with taking all the prevailing circumstances and evidence into account. That it is not in dispute, that  Barclays Bank’s witness admitted that they complained to the Police that the cheques were lost and they gave evidence which falsely implicated the Plaintiff in the criminal case and that it is this complaint that led Police Officers Yegon and Wanjala to arrest the Plaintiff. That therefore, the criminal proceedings in Criminal Case No. 437 of 2000 (Republic v. Daniel Njuguna Muchiri and 2 Others) were instigated and instituted by the Defendants jointly and severally.

78. On whether there was reasonable and probable cause to prosecute the Plaintiff,reliance was placed on the decision by Rudd, J in Kagane –vs- Attorney General (1969) EA 643, as quoted in the Stephen Githaiga case, which set the test for reasonable and probable cause. Citing Hicks vs. Faulkner, [1878] 8 QBD 167 at 171 Herniman vs. Smith [1938] AC 305 and Glinski vs. McIver [1962] AC 726, the learned judge stated thus:-

“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...Excluding cases where the basis for the prosecution is alleged to be wholly fabricated by the prosecutor, in which the sole issue is whether the case for the prosecution was fabricated or not, the question as to whether there was reasonable and probable cause for the prosecution is primarily to be judged on the basis of objective test. That is to say, to constitute reasonable and probable cause the totality of the material within the knowledge of the prosecutor at the time he instituted the prosecution, whether that material consisted of facts discovered by the prosecutor or information which has come to him or both, must be such as to be capable of satisfying an ordinary reasonable prudent and cautious man to the extent of believing that the accused is probably guilty. If and insofar as that material is based on information, the information must be reasonably credible, such that an ordinary reasonable prudent and cautious man could honestly believe to be substantially true and to afford a reasonably strong basis for the prosecution...If it is shown to the satisfaction of the judge that a reasonable prudent and cautious man would not have been satisfied that there was a proper case to put before the court, then absence of reasonable and probable cause has been established. If on the other hand the judge considers that prima facie there was enough to justify a belief in an ordinary reasonable prudent and cautious man that the accused was probably guilty then although this would amount to what I call primary reasonable and probable cause the judge may have to consider the further question as to whether the prosecutor himself did not believe in the probable guilt of the accused, and this is obviously a matter which is to be judges by a subjective test. This subjective test should only be applied where there is some evidence that the prosecutor himself did not honestly believe in the truth of the prosecution...Inasmuch as this subjective test only comes into operation when there were circumstances in the knowledge of the prosecutor capable of amounting to reasonable and probable cause, the subjective test does not arise where the reason alleged as showing absence of reasonable and probable cause is merely the flimsiness of the prosecution case or the inherent unreliability of the information on which the case was based, because this is a matter for the judge alone when applying the objective test of the reasonable prudent and cautious man. Consequently the subjective test should only be applied where there is some evidence directly tending to show that the prosecutor did not believe in the truth of his case. Such evidence could be afforded by words or letters or conduct on the part of the prosecutor which tended to show that he did not believe in his case, as for example a failure or reluctance to bring it to trial, a statement that he did not believe in it and, I think possibly, an unexplained failure to call an essential witness who provided a basic part of the information upon which the prosecution was based.”

79. The plaintiff submitted that having regard to the circumstances that prevailed particularly the fact that it was the Plaintiff who initially brought the matter to the top echelons of Barclays Bank and the fact that the Bank subsequently wished to withdraw the complaint against the Plaintiff even after he had suffered damages and ridicule, there was no reasonable and probable cause or an honest belief in the guilt of the Plaintiff that would 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.

80. It was also submitted that a reasonable person would have used the Plaintiff as a witness and would never have come to the conclusion that the Plaintiff was probably guilty of the crime of stealing as imputed by Barclays Bank and the 2nd Defendant. In these circumstances, therefore, it was submitted that the question as to whether there was reasonable and probable cause for the prosecution which is primarily to be judged on the basis of objective test, does not arise and even if it arises, there was clearly no reasonable and probable cause for the prosecution of the Plaintiff.

81. It was submitted further that the Defendants failed to establish a prima facie case in the criminal proceedings and the Plaintiff was not even put to his defense and that therefore the subjective test should only be applied where there is the overwhelming and unchallenged evidence by the Plaintiff that the both Barclays Bank and the Police (as Prosecutors) did not honestly believe in the truth of the prosecution.

82. On Whether the criminal proceedings terminated in favour of the Plaintiff it was submitted that the proceedings and judgment in the trial court clearly attest to the fact that the prosecution of the plaintiff was terminated in his favour when the trial magistrate declared that:

“The Accused are found, therefore, not guilty of the offences facing them and are acquitted under section 215 of the Criminal Procedure Code.”

83. On Whether the prosecution was actuated by malice it was submitted thatBarclays Bank reported the Plaintiff to the Police when they knew too well that he was innocent, as admitted by the 1st defendant's witness at page 71 of the handwritten Court proceedings that: “From the records, it is the Plaintiff who alerted Barclays Bank that it had made a mistake by issuing 3 cheques instead of one and in Kshs. instead of foreign currency as instructed.”

84. It was submitted that it is therefore, clear that Barclays Bank’s turn around and reporting the Plaintiff to the Police for the theft of the three cheques was maliciously done for reasons that:

a. Barclays Bank gave a false report and information to the Police without any reasonable basis.

b. Barclays Bank launched investigations against the Plaintiff instead of launching investigations against its own officers.

c. Barclays Bank refused, neglected and failed to conduct proper investigations into its own officers and internal departments which were involved in the disappearance of the cheques and instead launched investigations and complaints against the Plaintiff who was in no way involved in the stealing.

d. Barclays Bank ignored and disregarded the Plaintiff’s instructions governing the payment of dividends to Paribas Bank, to pay in US$ or Swiss Francs instead of Kenya Shillings.

e. Barclays Bank failed to stop payment instructions for the three Kenya Shillings cheques before issuing the replacement cheque in Swiss Francs so that the original cheques and this failure actually ensured that the three cheques would be honoured on presentation notwithstanding the replacement.

f. Barclays Bank orchestrated the Plaintiff’s prosecution and involved its officers or agents namely Ruth Mugera and Paul Kivuva as well as Charles Gathiru in the arrest.

g. Barclays Bank provided selective evidence which was tailored and calculated to protect the failures of its own servants, employees or agents.

h. Barclays Bank acted unreasonably, negligently and was propelled by some other motive other than to bring the culprits to justice and to resolve the stealing, which it would simply have resolved by stopping the three original Kenya Shillings’ cheques.

i. Barclays Bank failed to act honestly and in good faith in these circumstances.

85. In the alternative, it was submitted that even if the Bank did not adversely mention the Plaintiff, which is clearly against the evidence available, then  Barclays Bank should have taken steps to inform the Police that the Plaintiff was innocent having believed so. It was submitted that Instead, they let the Plaintiff go through the whole trial process without uttering a word in support of the Plaintiff’s innocence to exonerate him from blame hence they were actuated by malice in prosecuting the Plaintiff.

86. It was also submitted that Barclays Bank caused the Plaintiff to suffer for their own mistakes as admitted by its witness at page 72 of the handwritten Court proceedings that: “The bank should have stopped the payment of the 3 cheques or called for and cancelled the original cheques. From the record, the 3 cheques were never stopped.”

87. The plaintiff’s counsel further submitted that Barclays Bank having made a complaint to the Police, they were duty-bound, as the complainants, to represent to the Police that they honestly believed that the Plaintiff was innocent and that the charges against him should not have been initiated at all. That Barclays Bank owed a duty of care to the Plaintiff to disclose the information that they genuinely believed in the innocence of the Plaintiff including the correspondence and telephone conversations. They did not and, therefore, breached that duty.

c. Reliance was placed onBlyth v The Company of Proprietors of the Birmingham Waterworkscited by the Court inKenya Power & Lighting Co. Ltd v Mathew Kabage Wanyiri [2016] eKLR  where it was heldinter alia:

"Negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do....."

88. The  plaintiff’s counsel also relied on Halsbury’s Laws of England to indicate what the Plaintiff must prove, which he had proved above, as follows:

"The burden of proof in an action for damages for negligence rests primarily on the plaintiff, who, to maintain the action, must show that he was injured by a negligent act or omission for which the defendant is in law responsible. This involves the proof of some duty owed by the defendant to the plaintiff, some breach of that duty, and an injury to the plaintiff between which the breach of duty a casual connection must be established."

89. The plaintiff also relied on the trial court’s assessment of the evidence to urge this court to find malice on the part of the 1st defendant as stated on page J11 of the criminal case proceedings that: “…the prosecution has failed to give any evidence linking the third accused to the case at all. His charging amounts to nothing but an act of malice on the part of investigating officer. The officer fabricated this case against him without a basis. This kind of behavior should be stopped by the investigating officer’s superiors.”

90. It was submitted that the existence of malice is intertwined with the element of reasonable and probable cause and the prosecution of the Plaintiff without reasonable and probable cause betrays malice and demonstrates that the instigator of the prosecution was motivated by malice. Reliance was placed on the  Stephen Githaiga case where the court held that:

“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 words the Police or any other prosecution arm of the Government is not a mere conduit for complainants. The Police must act impartially and independently on receipt of a complaint and are expected to carry out thorough investigations which would ordinarily involve taking into account the versions presented by both the complainant and the suspect.... However, where the Police deliberately decide not to take into account the version of the suspect and acts on a story that eventually turn out to be improbable and which no ordinary prudent and cautious man would have relied upon that failure may constitute lack of reasonable and probable cause for the purposes of malicious prosecution.”

91. It was submitted that had the Police Officers carried out their investigations diligently and aggressively, they would have found that the Plaintiff had no reasonable connection to the offense and they would have used him as a witness.  Further reliance was placed on the Stephen Githaiga case where the court stated that the absence of evidence upon which a reasonable Prosecutor would charge the Plaintiff renders the subsequent prosecution as actuated by malice. The court articulated this as follows:

“In the absence of any evidence as to the facts and circumstances upon which the second Respondents' relied, the court can only conclude that there was no probable and reasonable cause for charging the first Respondent and that constitutes malice for the purposes of the tort of malicious prosecution.”

92. It was also submitted by the plaintiff’s counsel that by maliciously prosecuting the Plaintiff, the Prosecution abused the process of Court. The case of Thomas Mboya Oluoch & Another v Lucy Muthoni Stephen & Another Nairobi HCCC No. 1729 of 2001 Ojwang, J (as he then was) was cited, approving the Stephen Githaiga case that:

“Unless and until the common law tort of malicious prosecution is abolished by Parliament, Policemen and prosecutors who fail to act in good faith, or are led by pettiness, chicanery or malice in initiating prosecution and in seeking conviction against the individual cannot be allowed to ensconce themselves in judicial immunities when their victims rightfully seek recompense...I do not expect that any reasonable Police officer or prosecution officer would lay charges against anyone, on the basis of evidence so questionable, and so obviously crafted to be self-serving. To deploy the State’s prosecutorial machinery, and to engage the judicial process with this kind of litigation, is to annex the public legal services for malicious purposes”.

93. On Whether the Plaintiff suffered loss,it was submitted on behalf of the plaintiff that he suffered a great deal of loss resulting from the malicious prosecution. That the Plaintiff proved through his unchallenged evidence that he was subjected to humiliation, ridicule, desecration of reputation, mental and physical torture when he was subjected to deplorable conditions during his confinement in the Police cells. That he also incurred expenses in defending the criminal charges against him, he suffered fear, his contract was not renewed by the Japanese Bridgestone investors who took over the Firestone E.A company, he could not find alternative employment because of the taint and dent on his reputation, his dreams of rising up the ladder of his career were shattered and that no one could trust him when the newspapers reported to all and sundry that he was a thief.

b. It was averred that the Plaintiff lost employment benefits that he used to earn which was Shs.150,000 per month while enjoying insurance, medical, entertainment and membership to clubs.

94. On Whether the Defendants are liableit was submitted thatboth Barclays Bank and the 2nd Defendant are liable for the losses, injuries and damages suffered and inconvenience occasioned by the false imprisonment, malicious prosecution and publication of a defamatory article. That Barclays Bank made the false complaint and failed to act to stop the prosecution of the Plaintiff; whereas the  2nd Defendant’s agents failed to carry out proper investigations into the link between the stealing and the Plaintiff; and that they prosecuted the Plaintiff based on no evidence at all occasioning the Plaintiff great loss and realigning his life to the negative by ruining his dreams and shattering his vision.

95. It was submitted that the 2nd Defendant had failed completely to adduce evidence to controvert the evidence adduced by the Plaintiff and is equally liable and that the evidence by the Plaintiff against both Defendants in the material particulars is uncontroverted. Reliance was placed on the Stephen Githaiga where the court stated that:

“In the case of Interchemie EA Limited v Nakuru Veterinary Centre Limited Nairobi (Milimani) HCCC No. 165B of 2000 Mbaluto, J. held that where no witness is called on behalf of the defendant, the evidence tendered on behalf of the plaintiff stands uncontroverted. If one is still in doubt as to the legal position reference could be made to the case of Drappery Empire v The Attorney General Nairobi HCCC No. 2666 of 1996 where Rawal, J (as she then was) held that where evidence is not challenged and stands uncontroverted due to the failure by the defendant to adduce evidence, the standard of proof in civil cases (on the balance of probabilities) has been attained by the plaintiff.”

96. Further, the plaintiff’s counsel cited Trust Bank Limited vs. Paramount Universal Bank Limited & 2 Others Nairobi (Milimani) HCC No. 1243 of 2001where the learned judge stated that it is trite that where a party fails to call evidence in support of its case, that party’s pleadings remain mere statements of fact since in so doing the party fails to substantiate its pleadings. In the same vein, it was submitted that the failure to adduce any evidence by the second defendant in this case means that the evidence adduced by the Plaintiff against both Barclays Bank and the 2nd Defendant is uncontroverted and, therefore, unchallenged. Further reliance was placed on the Ugandan case of Dr. Willy Kaberuka vs. Attorney General Kampala HCCS No. 160 of 1993 the Court held, as quoted in the Stephen Githaiga case that:

“The plaintiff suffered injury to his reputation. .............................He must have suffered the indignity and humiliation. He is also entitled to recover damages for injuries to his feelings especially the possibility of serving a sentence…There are no hard and fast rules to prove that the plaintiff’s feelings have been injured or that he has been humiliated as this is inferred as the natural and foreseeable consequence of the defendant’s conduct. The plaintiff’s status in Society is also a relevant consideration and for all these reasons the plaintiff is entitled to damages…A plaintiff who has succeeded in his claim is entitled to be awarded such sum of money as will so far as possible make good to him what he has suffered and will possibly suffer as a result of the wrong done to him for which the defendant is responsible”.

97. On what damages the plaintiff is entitled to,it was submitted that in Peter M. Kariuki v Attorney General [2014] eKLR, the Court of Appeal cited the Supreme Court of Uganda decision inCuossens v Attorney General, (1999)1 EA 40,where the court held  that

“The object of an award of damages is to give an injured party compensation for the damage, loss or injury that he has suffered and that the general rule regarding the measure of damages is that the injured party should be awarded a sum of money as would put him in the same position as he would have been if he had not sustained the injury. Where the injury in question is non-pecuniary loss, assessment of damages does not entail arithmetical calculation because money is not being awarded as a replacement for other money; rather it is being awarded as a substitute for that which is generally more important than money, and that is the best that a court can do in the circumstances.”

98. The same court of Appeal held that:

“Turning to the ground of appeal relating to damages, it bears repeating that assessment of quantum of damages is a matter for the discretion of the trial judge, which must be exercised judicially and with regard to the general conditions prevailing in the country and to prior relevant decisions.”

99. in the same case, the Court of Appeal quoted Madan JA in holding that:

“Madan, JA again, aptly observed that an award of general damages should not be miserly, it should not be extravagant, it should be realistic and satisfactory and therefore it must be a reasonable award. In the same judgment, he addressed an argument similar to the one before us, tying the quantum of damages to an appellant’s station in life:

“It is not always altogether logical that general damages should be assessed in relation to the station in life of a victim. There must be some general consideration of human feelings. The pain and anguish caused by an injury and resulting frustrations are felt in the same way by the poor, the not so rich and the rich. Again inflation is also no respecter of persons.””

1. The plaintiff further relied on  Daniel Waweru Njoroge & 17 Others v Attorney General[2015] eKLR, where the court held that:

“On quantum of damages the court has to bear in mind the following cardinal principles in the assessment of damages namely:

a.Damages should not be inordinately too high or too low.

b.Should be commensurate to the injury suffered.

c.Should not be aimed at enriching the victim but should be aimed at trying to restore the victim to the position he was in before the damage was suffered.

d.Awards in past decisions are mere guides and each case depends on its own facts.”

100. The Plaintiff prayed for damages as follows:

a. General damages

1. False Imprisonment

i. General damages relying on the case of Daniel Waweru Njoroge & 17 Others v Attorney General[2015] eKLR, where the plaintiffs claimed that they were taken to Mukurweini Police Station where they were placed in an over-crowded police cell which was littered with urine and human waste and poorly ventilated and that they were detained in the said cell for one night, were forced to stand for long hours and those who were not able to stand were forced to sit on the floor littered with urine and human waste. The court awarded Shs.Kshs.100,000/= The plaintiff prayed forsh600,000 general damages for false imprisonment.

ii. Exemplary and punitive damages relying on Chrispine Otieno Caleb v Attorney General [2014] eKLR, where the Plaintiff was arrested by police from his place of work, City Hall, Nairobi and maliciously and without regard to his liberty kept in police custody for four days under degrading conditions and charged in court in Nairobi Criminal Case No. 1009 of 2006 with trumped up charges which were subsequently dismissed on no case to answer on 13th June, 2007. Odunga J awarded  Shs.500,000 exemplary damages. The plaintiff prayed for similar amount.

2. Malicious Prosecution

i. General damages based on the case of Naqvi Syed Qmar v Paramount Bank Limited & another[2015] eKLR, where the Claimant as arrested after the Paramount Bank’s Internal Auditor, reported to the Police that the he had stolen KShs.9,000,127 from the Paramount Bank’s Mombasa Branch, in which he was Chief Manager.  He was suspended on 3rd pending finalization of the investigation. He was later summarily dismissed. The Claimant was charged with the offence of stealing by servant in the Chief Magistrate’s Court at Mombasa Criminal Case Number 3199 of 2012. It was reported in the Daily Nation Newspaper on 9th November 2012, and the Nation TV News of 8th November 2012. The case was later withdrawn. Rika J awarded KShs.2,500,000. The plaintiff herein prayed for an award of Shs.2,500,000 for malicious prosecution to be paid by the Defendants jointly and severally.

ii. Exemplary and punitive damages.  the plaintiff prayed for Shs. 500,000 because “the defendant’s action was calculated to procure him some benefit, not necessarily financial, at the expense of the plaintiff.”

2. Defamation (abuse of the legal process)General damages for deprivation of liberty. It was submitted that this is awarded under false imprisonment

ii. General damages for denial of right to legal representation and access to family and friends. It was submitted, relying on Standard Newspapers Limited & another v Attorney General & 4 others[2013] eKLR, that in most cases relating to violation of human rights and fundamental freedoms the court awards Shs.5 million. The plaintiff sought shs 10,000,000 based on the claim that he was denied legal representation. In the above decision where the Respondents’ agents ‘raided’ the Petitioners media houses and seized their equipment and publications thus violating the Petitioners’ fundamental rights. Mumbi Ngugi J awarded the Petitioners KShs.5 million.

iii. General damages for Defamation . the plaintiff relied on Naqvi Syed Qmar v Paramount Bank Limited & another where Rika J held:

“He shall be paid by the 1st Respondent 6 months’ salary in compensation for unfair termination at KShs.1,800,000 and general damages for employment related defamation at KShs.2,500,000. ”

101. That the Plaintiff was 35 years when his employment was not renewed and was therefore jobless in 2000 as General Accounting Manager. His net earnings were Shs.130,000 (including a company maintained car) and that from 2000 to 2002 he would have earned 130,000×12×2 =KShs.3,120,000.

102. In this case it was submitted that the Plaintiff was young, energetic and was due for promotion to Financial Controller in 2 years’ time and his salary would have risen to KShs.225,000. He would have worked for another 8 years on this higher pay earning him 225,000×12×8= KShs.21,600,000. that the Plaintiff would have worked up to age of 55 in a senior executive position and  would have been entitled to KShs.10,000,000 as employer contribution [7. 5% of gross pay] for his retirement in the employer provident/pension scheme.The court was urged to awardthe Plaintiff KShs.34,720,000 as general damages for abuse of the legal process which led to defamation and this is the cause for the Plaintiff’s subsequent failure to secure employment and the directly resultant loss of retirement benefits.

b. Special Damages.

103. It was submitted that the Plaintiff incurred legal fees of KShs.100,000 in defending the criminal proceedings against him. That he made 22 trips to and fro the Law Courts for two years for mentions and hearings over 20 kilometers at Shs.35 per kilometer. That the travelling cost was, therefore, 20×35×22 =KShs.15,400.  A sum of KShs.115,400 as special damages for defending the suit and travel costs were prayed for all totaling    Kshs 48,935,400 general, exemplary and special damages.

104. The plaintiff also prayed for costs of the suit and interest at court rates from date of judgment until payment in full.

SUBMISSIONS BY THE 1ST DEFENDANT

105. Relying on the decision of the Court of Appeal in the case of Robert Okeri Ombeka v Central Bank of Kenya [2015] eKLR, the first defendant urged the court to dismiss the plaintiff’s case with costs. In the above case, the court held, inter alia:

“The fact is that the respondent bank made a report to the police who investigated and chose to charge the appellant. All that the respondent did was to report the fraudulently obtained certificates to the police. That is the duty of every citizen including public and private institutions. The rest was up to the police who conducted their own independent investigation and formed the basis of the criminal proceedings.”

106. The 1st defendant framed the following issues for determination:

a. Whether the 1st Defendant made a complaint to the police specifically against the Plaintiff?

b. Whether the 1st Defendant initiated and continued the criminal proceedings against the Plaintiff?

c. Whether the 1st Defendant acted maliciously against the Plaintiff?

107. According to the 1st defendant, the plaintiff did not prove that the 1st defendant lodged any complaint against it to the police and that instead, the Plaintiff had unsuccessfully made desperate attempts to link the 1st Defendant to the investigations. Further, that although the Plaintiff alleged that he had lost his job due to the investigations, on cross examination, he stated that his contract had actually expired and was not terminated as he had earlier stated. Further, that in any event, jurisdiction to entertain complains of unlawful termination, if any, vests exclusively with the Industrial Court.

108. The 1st defendant also maintained that the Plaintiff had in his evidence confirmed the finding of the Court in the criminal case where the trial Magistrate blamed the police investigating officer for acting with malice in preferring charges against the Plaintiff and that in reaching that decision, the Honourable Magistrate was well informed of the mandate of the investigating officer being the sole person with power to investigate and prefer charges.

109. The 1st defendant also submitted that no evidence was placed before this Court that the 1st Defendant directed the course of the said investigations. In addition, it was contended that the police conducted their own independent investigations and preferred the charges against the suspects. Further, it was submitted that the 1st Defendant also did not participate in preparing the charge sheet and that any employees of the 1st Defendant who were interrogated by the Police as a witnesses did so in their individual capacity and not as the agents of the 1st Defendant.

110. The 1st defendant also submitted that in any case, it did not participate in preparing summons for witnesses as that was the preserve of the Prosecutor and that at no time did the 1st Defendant have control over how the witnesses were listed or called during trial.

111. The 1st defendant maintained that:

i. It did not institute criminal proceedings against the Plaintiff.

ii. The 1st Defendant reported the alleged crime which is constitutional right of every citizen and this right cannot be fettered.

iii. The Plaintiff was not an employee of the 1st Defendant nor did the 1st Defendant owe the Plaintiff any duty of care.

iv. The Police and office of Director of Public Prosecution have a monopoly over criminal investigations and prosecution and in executing the constitutional mandate, those institutions are independent and not under any direction of a third party.

112. The 1st defendant further relied on the case of Catherine Wanjiku Kariuki vs. Attorney- General & Another [2011] e-KLR, where the court held that:

‘’it is the duty of every Citizen to report to the Police any crime suspected, upon reasonable ground, to have been committed, or being committed, or about to be committed. Once that civic duty is done, it is the business of the Police to independently investigate the matter and arrive at their own conclusion… whether to charge anyone with such crime.’’

113. Further reliance was placed on the case of Douglas Odhiambo Apel & another v Telkom Kenya Limited Civil Appeal no 115 of 2006where the court held,ted inter alia that:

“The Plaintiffs were arrested and charged by the police.And the prosecution was undertaken by the Attorney-General (now DPP) as public Prosecutor.Telkom Kenya was merely a complainant.The decision to charge and prosecute the plaintiffs was taken by the police and the Attorney-General. Telkom Kenya as a complainant would not have been involved in the process. Once Telkom Kenya had made a complaint to the police, it was left to police to investigate the complaint and decide whether or not to charge the plaintiffs.That is why in a claim for damages for unlawful arrest, false imprisonment and malicious prosecution; the proper defendant is always the Attorney General.”

114. The 1st defendant submitted that in the above case, the Court was emphatic that any claim for false imprisonment and malicious prosecution, the proper Defendant is the Attorney General (now the Director of Public Prosecutions (DPP) under the new Constitution), and that the 1st Defendant was thus wrongly enjoined by the Plaintiff.  In addition, the 1st defendant submitted that the responsibility for setting the law in motion rests entirely on the police as stated inGitau Vs. Attorney General [1990] KLR 13, where Trainor J. that:

“…The responsibility for setting the law in motion rests entirely on the Officer-in-Charge of the police station.If the said officer believed what the witnesses told him then he was justified in acting as he did, and the court is not satisfied that the plaintiff has established that he did not believe them or alternatively, that he proceeded recklessly and indifferently as to whether there were genuine grounds for prosecuting the plaintiff or not. The Court does not consider that the plaintiff has established animus malus, improper and indirect motives, against the witness.”

115. The 1st defendant further relied on James Karuga Kiiru vs. Joseph Mwamburi and 3 Others, Nrb C.A No. 171 of 2000, cited in Chrispine Otieno Caleb v Attorney General [2014] eKLR) where the court held that:

“The 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 words the police or any other prosecution arm of the Government is not a mere conduit for complainants. The police must act impartially and independently on receipt of a complaint and are expected to carry out thorough investigations which would ordinarily involve taking into account the versions presented by both the complainant and the suspect….It is not required of any prosecutor that he must have tested every possible relevant fact before he takes action. His duty is not to ascertain whether there is a defence, but whether there is a reasonable and probable case for a prosecution. Circumstances may exist in which it is right before charging a man with misconduct to ask for an explanation but no general rule can be laid down.“

116. It was therefore contended that the 1st Defendant cannot be victimized for exercising its duty and that this suit  is misplaced and an abuse of the court process as it is akin to criminalizing the action taken by a citizen to report alleged violation of its right to police who then carry out their independent investigations and then forward the file to the prosecutor for further action. Further, that the test of whether there was ‘a reasonable or probablecause’ to initiate criminal proceedings lies to the office responsible for prosecution and not the person who made the complaint as was held by the Court of Appeal in Robert Okeri Ombeka v Central Bank of Kenya [2015] eKLRthat:

“Aganyanya, J (as he then was) in the case of Socfinaf Kenya Ltd V Peter Guchu Kuria, (supra), observed as follows:“Moreover, when there is a case of suspected theft the first step is to report the matter to police, who in their own way find out how to carry out investigations. And it is up to the police to take further steps like taking a suspect to court if they have sufficient evidence against such suspect to warrant such action. This then is the action by police and the state should be involved or joined in such suit and that the complainant should not be blamed for making such report to police. What is of great significance in such case is whether or not there is a reasonable and/or probable cause for the arrest and/or prosecution of the culprit. And the onus of proving that there was no reasonable and probable cause for the arrest and prosecution of the suspect lies on him/her who queries such arrest or prosecution.

As to the prosecution of the respondents, the complainant could not force police to do so when there was no evidence to take them to court. Police carry out investigations before taking suspects to court and there are various incidents when police have declined to prosecute a suspect when investigations have disclosed no offence to warrant this. If the respondent’s case fell in the latter category then I am sure they would not have taken to court. That a suspect was acquitted of a criminal case is not sufficient ground for filing 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.”

117. The 1st defendant also relied on Music Copyright Society of Kenya vs. Tom Odhiambo Ogolla [2014] eKLRwhere the Court was unequivocal that:

“Whether there was reasonable and probable cause is to be determined from the nature of the charge preferred by the police.”

118. And in Simba vs. Wambari (1987) KLR 601 as cited in David Mungai Kinyanjui & 2 Others v Attorney General {2012} eKLR, where the Court explained what constitutes a reasonable and probable cause and held that:

“The Plaintiff must prove that the setting of the law in motion by the inspector was without reasonable and probable cause….if the inspector believed what the witnesses told him then he was justified in acting as he did and I am satisfied the plaintiff has not established that he did not believe them or alternatively that he proceeded recklessly and indifferently as to whether there were genuine grounds of prosecuting the plaintiff or not.”

119. According to the 1st defendant, all ingredients for malicious prosecution must be fully proved as was emphasized in   Mbowa v East Mengo District Administration(cited in Music Copyright Society of Kenya vs. Tom Odhiambo Ogolla (supra).

120. It was submitted that malicious prosecution claims are not instituted against a Complainant who gave the information to the police to carry out their investigations and establish whether there is a prima facie case. That the 2nd Defendant acting through the police prosecutors is the only officer with monopoly to institute criminal prosecutions.  The 1st defendant invited the court to follow the precedent set by the Court of Appeal inRobert Okeri Ombeka v Central Bank of Kenya (supra)where the learned judges stated follows:

“Public policy favors the exposure of crime, and the cooperation of citizens possessing knowledge thereof is essential to effective implementation of that policy. Persons acting in good faith who have probable cause to believe that crimes have been committed should not be deterred from reporting them by the fear of unfounded suits by those accused. This view is in accord with the decision of the South African case ofBECKENSTRATER V ROFFCHER & THEUNISSEN, 1955 1 SA 129 (A) 135D-E, and carried forward in the case ofRELYANT TRADING (PTY) LTD V SHONGWE, 2007 1 ALL SA 375 (SCA) para 14where Malan JA stated that:

“… the requirement of reasonable and probable cause "is a sensible one" since "it is of importance to the community that persons who have reasonable and probable cause for a prosecution should not be deterred from setting the criminal law in motion against those whom they believe to have committed offences, even if in so doing they are actuated by indirect and improper motives.”

121. According to the 1st defendants, it is not in dispute that three cheques had been wrongly and fraudulently converted and therefore the 1st defendant was justified and had the constitutional right to lodge a complaint to the police for investigations to be instituted to establish the person responsible for the loss of the three cheques. That as the 1st Defendant was not a party to the criminal case, he cannot be held liable for exercising its civil duty to report alleged acts of breach of law. The 1st defendant therefore urged the court to dismiss the plaintiff’s suit against it with costs.

SUBMISSIONS  BY THE 2ND DEFENDANTS

122. The 2nd defendant framed the following issues for determination by the Court:

1. Whether the Plaintiff was unlawfully confined and whether he is entitled to damages as a result of the same

2. Whether the Plaintiff was defamed by the publication on the Daily Nation and whether he is entitled to damages as a result of the same.

3. Whether the prosecution against the Plaintiff was malicious and whether he is entitled to damages as a result of the same.

4. Whether the Plaintiff is entitled to special damages.

123. On  Whether the Plaintiff was unlawfully confined and whether he is entitled to damages as a result of the said confinement, it was  submitted, relying on the case of  David Mungai Kinyanjui & 2 Others versus Attorney General (2012) eKLR Nairobi High Court Civil Case no. 318 of 2009; citing James Karuga Kiiru versus Joseph Mwamburi & 2 Others Civil Appeal No. 171 of 2000;that so long as the police take reasonable measures after the arrest, they are important adjunct to the administration of justice and are not to be faulted. And that it may well be that the Appellant was innocent all the time, but there is no reason in the absence of necessary evidence for making a police officer liable when he had only done his duty in investigating an offence. Further, that tha whether a person arrested is arrested in accordance with the law or whether it is unlawful to arrest him depends on the circumstances of his arrest.

124. It was further submitted that the court in the above cited cases observed that where there is a genuine complaint made to the arresting officer, usually a police officer, it can be said that the arrest was lawful. And on the claim for false imprisonment, it was submitted that the Courts in the above cited cases held that when a constable has arrested a person suspected of an offence he can do what is reasonable to investigate the matter to see whether the suspicion are supported or not by further evidence. In the premise, the 2nd defendant contended that as long as the measures taken by the police during the investigation period are reasonable and is important adjunct to the administration of justice, a claim for false imprisonment and unlawful arrest cannot suffice.

125. On the issue of whether the Plaintiff was defamed by the publication in the Daily Nation and whether he is entitled to damages as a result of the said publication, the 2nd defendantsubmitted that the first ingredient in the claim for defamation namely, that the publication was false has not been met. That the statement complained of was not false but a fair comment on what had happened and the same cannot amount to falsehood. Further, that the allegations against the Plaintiff were made innocently. It was also submitted that the said publication was made innocently without the intent to causing any harm to the Plaintiff and that it is the duty of the media to disseminate information to the public so that the public is kept abreast on the happenings of the day.

126. The 2nd defendant submitted that the Plaintiff was an accountant at Firestone East Africa, an International Company which was established in Kenya in 1969 between the Firestone Tyre and Rubber Company of the United States of America and the Government of Kenya, and that Firestone was always in the limelight and as such there is no way that the 2nd Defendant would have stopped the publication. Further, that the Plaintiff did not prove in any way that he suffered any loss as a result of the publication. That the plaintiff should have called a witness who could have shown the respect the public had for the Plaintiff which had been lowered and or that the Plaintiff was viewed as a criminal and a dishonest person who could not get employment anywhere. It was also submitted that the plaintiff did not prove the extent of damage suffered by him as a result of the said publication.

127. Further it was submitted that the Plaintiff did not state in detail the particulars of the actual conduct of the Defendants that defamed him. That it was necessary for the Plaintiff to quote the actual words complained of and their context and that if the words so spoken were claimed to be false or malicious the same were required to be particularly stated. Reliance was placed on John Otieno Obuya versus National Hospital Insurance Fund & Attorney General (2012) eKLR Nairobi HCCA NO. 799 of 2007.

128. The 2nd defendant also relied on the case ofByrum Kenneth Olenja versus Michael Opundo & Another (2011) eKLR Nairobi HCCA No. 230 of 2000 where the Court observed that the Appellants claim of defamation lacked a basis as it was not properly pleaded as required under order VI Rule 6A of the Civil Procedure Rules(now repealed by the Civil Procedure Rules 2010- Order 2 rule 7(1)), which stipulates that where in an action for libel or slander the plaintiff alleges that the words or matters complained of were used in a defamatory sense other than their ordinary meaning, he shall give particulars of the facts and matters on which he relies in support of such sense.  In the present suit it was submitted that the Plaintiff did not specifically plead his claim for defamation as is required under Order 2 rule 7(1) of the Civil Procedure Rules 2010 and as such he is not entitled to damages for libel and slander.

129. It was also submitted that in the case of Byrum(supra)the Court further observed that the claim for defamation was in actual fact a duplication as the damages suffered were the same as those for false imprisonment and malicious prosecution hence the Plaintiff is not entitled to damages for defamation and malicious prosecution as the same amounts to duplication.

130. On whether the prosecution against the Plaintiff was malicious and whether he is entitled to damages as a result of the said alleged malicious prosecution, reliance was placed on the case of Kagane and Others versus the Attorney General (1969) E.A 643 where Rudd J. laid down the principles that the Plaintiff must prove in  a case of malicious prosecution as follows:

a. That the prosecution was instituted by a police officer;

b. That the prosecution terminated in the Plaintiff’s favour;

c. That t he prosecution was instituted without reasonable and probable cause; the test for this condition is whether the material known to the prosecutor would have satisfied a prudent and cautious man that the Plaintiff was probably guilty of the offence.

d. That the prosecution was actuated by malice; malice means that the prosecution was motivated by something more that a desire to vindicate justice.

131. On the issue of the prosecution being instituted by the police officer, it was conceded that indeed the prosecution was instituted by a police officer and that it is also true that the prosecution terminated in the Plaintiff’s favour.

132. On the issue of whether the prosecution was actuated by malice, it was submitted that the lack of reasonable and probable cause cannot be relied upon by itself to show malice. That in this case, the Plaintiff had not adduced any evidence of malice spite or ill-will or by indirect or improper motive.  It was further submitted that the prosecution was not motivated by something more than a desire to vindicate justice. Reliance was placed on the case of Katerega versus Attorney General (1973) E.A 289where the Court observed that: -

“It is well established that in a claim for damages for malicious prosecution, malice in fact must be proved showing that the person instituting the proceedings was actuated either by spite or ill-will or by indirect or improper motives.”

133. In this case, it was contended by the 2nd defendant that the police had good intentions in that they were only performing their duties when the 2nd Defendant decided to investigate the allegations made against the Plaintiff. That the 2nd Defendant preferred charges against the Plaintiff because they had reason to believe that the offence that the Plaintiff had committed was one which could be tried in a Court of Law. That no evidence was adduced to prove that the 2nd defendant in discharging his duties was actuated either by spite or ill-will or by indirect or improper motives.

134. On whether the prosecution was instituted without a reasonable and probable cause, reliance was placed on the case of Kagane versus Attorney General (1969) E.A 643where the court held that:

“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, 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. If the material known to the prosecutor is based upon information, the information must be reasonably credible, such that an ordinary reasonable prudent and cautious man could honestly believe to be substantially true and to afford a reasonably strong basis for the prosecution. If a prudent and cautious man would not have been satisfied that there was a proper case put before the Court, then absence of reasonable and probable cause has been established. If a prudent and cautious man would believe that the accused was guilty then the Court has to consider the further question as to whether the prosecutor himself did not believe in the probable guilt of the accused, and this is obviously a matter which is to be judged by a subjective test. However, this subjective test should only be applied where there is some evidence that the prosecutor himself did not honestly believe in the truth of the prosecution.”

135. The 2nd defendant submitted that the report made to the police officers and the investigations done thereafter made the police believe that indeed an offence had been committed. That the police believed in the report made by the complainant and hence the reason as to why they arrested, charged and prosecuted the Plaintiff. That the 2nd defendant believed that the information relayed to it by the complainant was credible  and was enough to satisfy a prudent and cautious man that the Plaintiff was guilty of the offence and hence the reason he was charged.

136. On the acquittal of the plaintiff under section 215 of the Criminal Procedure Code, the 2nd defendant submitted that the court should take  judicial notice that not every criminal prosecution must end up in a conviction. Reliance was placed on the decision by Hon Makhandia J (as he then was) in the case of Joseph Gicheru Muchiri versus Moses Kimenju waigwa Nyeri High Court Civil Appeal No. 119 of 1999wherein the learned Judge  observed that:

“If every time a prosecution ended in an acquittal and a party so acquitted reads malice in the police actions and follows it up with a civil claim, then there would be no need for the old adage that “ you are innocent until proven guilty…” There would be no need for criminal justice system at all. Indeed the Government and our civil system will be inundated with claims with the consequence that the treasury may even get broke making good those claims.”

137. It was therefore submitted that the fact that the plaintiff herein was acquitted under Section 215 of the Criminal Procedure Code means that the trial Court weighed the evidence of the Prosecution and found that the Plaintiff had a case to answer and was subsequently put on his defence and that therefore this Court cannot fault the 2nd Defendant’s action in charging the Plaintiff. The 2nd defendant also urged the court to note that the missing money that  gave rise to the criminal case was later recovered in full and that the 2nd Defendant should  be credited for helping to recover the lost money.

138. The 2nd defendant submitted that having investigated a complaint lodged by the 1st Defendant as is required, the Police Officers’ actions were justified as was held by Justice Trainor in Gitau vs. Attorney General [1990] KLR 13where the learned judge observed thus;

“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. Secondly he who sets the law in motion must have done so without reasonable and probable cause…The responsibility for setting the law in motion rests entirely on the Officer-in-Charge of the police station. If the said officer believed what the witnesses told him then he was justified in acting as he did, and the court is not satisfied that the plaintiff has established that he did not believe them or alternatively, that he proceeded recklessly and indifferently as to whether there were genuine grounds for prosecuting the plaintiff or not.”.

139. Further reliance was placed on the case of Mariko Mosegere Omariba v P.S. Ministry of Health & 2 others [2014] eKLR where Justice D.S Majanja in dismissing a claim for malicious prosecution where the Plaintiff had been acquitted under section 215 of the Criminal Procedure Code relied on the Court of Appeal decision in Nzoia Sugar Company Ltd v Fungututi [1988] KLR 399, where 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.”

140. On whether the Plaintiff is entitled to special damagesit was submitted that special damages must be pleaded and proved. That the Plaintiff pleaded special damages in the sum of Kshs. 59,000/= as Advocate’s legal fees for representation in the criminal case and Kshs 10,000/= for travelling expenses. However, it was contended that the same is only available to him if the Court finds that the plaintiff was maliciously prosecuted and having proved the same.

141. On the whole, the 2nd defendant urged the court to find that the plaintiff had not proved his case on a balance of probabilities and dismiss it with costs to the 2nd Defendant.

DETERMINATION

142. I have carefully considered the plaintiff’s claim, the defence, the evidence adduced and the documentary evidence produced in court.  I have  also considered   the very detailed  yet useful written  submissions  filed  by all   the parties’  advocates  on record . In my humble view, the following issues flow for determination.

1. Whether the plaintiff’s  was falsely imprisoned.

2. Whether   the plaintiff has proved  that his prosecution was malicious.

3. Whether the plaintiff has proved that his prosecution was an abuse of legal process.

4. Whether the defendants  are jointly and severally  liable to  the plaintiff  in respect  of the claims  herein for  false imprisonment, malicious  prosecution  and abuse of the legal  process.

5. Whether the plaintiff suffered special, general, exemplary and punitive damages for false imprisonment, malicious prosecution and abuse of the legal process.

6. What  is the  quantum of damages payable  to the plaintiff, if any

7. what orders should the court make and

8. Who should bear the costs of this suit?

143. On  the first  issue of  whether  the plaintiff  was falsely  imprisoned, the plaintiff testified  that on  6th June  2000  when he  was  at his  place of  work he   was  called  by his  Human Resource Manager  who informed  him that Anti-fraud  police officers had come to the premises and  wanted to interview  him.  The officers Wanjala and Yegon interviewed him and told him that he would be used as a prosecution witness in the fraud case.  They invited him to their offices on 16th June 2000 which he complied, with a view to recording a statement concerning the alleged fraud.  When he  arrived, the police  officers ushered  him  in a room and told him that he  had been  lying to Barclays  Bank  that he  knew where  the original  cheques   were.  An agreement  ensued  and he  was left  to go but  they instructed  him to return  on 17th June  2000  to record  a witness statement.  The  plaintiff became  apprehensive  that  the officers  might victimize  him so  he called his advocate Mr Wilfred  Nderitu  to accompany  him.  When  the officers  saw  the advocate, they  questioned  the plaintiff why he had  taken  along  with him  an advocate  yet he  was  a prosecution witness.  Superintendent Muinde instructed Mr Nderitu to leave which he obliged.  No sooner had Mr Nderitu left than the police officers told the plaintiff that he was now being charged with stealing and they proceeded to take his finger prints.  They told him that they were holding him at Kileleshwa police station until Monday.  They took him to Kamukunji police station where he was locked up together with street children.  They confiscated his phone   so that he could not communicate with his lawyer or family on his whereabouts.  He was never given any food.  On 19th  June 2000  morning, Yegon  went for  him, took him to Ukulima  House and  that when he was notified  that they were  charging  him with  stealing  the three cheques.  They took him to court, where the charges were read to him.  He denied and was bailed out on a shs 500,000 bond which was processed and he left the cells at 7. 00pm.

144. False imprisonment is described  by  Halsbury’s Laws of  England  4th Edition  page  606  as:

“Any  total restraint of the  liberty  of the person, for  however short a  time, by the  use or threat of force   or by  confinement, is an imprisonment.  To compel  a person to remain in   a given place is  an imprisonment, but  merely  to obstruct  a person attempting to pass in a particular direction or to prevent him  from moving in any direction  but one is not.  The gist   of the action  of false imprisonment   is the mere  imprisonment.  The plaintiff need not  prove that the imprisonment  was unlawful  or malicious, but  establishes  a prima facie  case if  he proves that  he  was  imprisoned by the defendant; the onus lies on the defendant  of proving  a justification.”

145. In Daniel Waweru Njoroge  & 17 Others V Attorney  General [2015] e KLR  the court  set out elements  of false  imprisonment  as follows:

“ The  gist  of  an action for false  imprisonment  is unlawful detention, without more.  The  commonly  accepted  definition  of false  imprisonment  defines  the  tort as:

1. The unlawful restraint  of another;

2. Against their  will; and

3. Without justification.

Proving  the first  element  of false imprisonment  involves  looking at the facts  whether  there   was any force or threat  or some kind used  in  restraining  the accusing  party.  It is  important to note  that actual  force is not  necessary.  Proving  the second  element  of false  imprisonment  involves  applying ‘reasonable  person’ standard.  Thus, the court  will  determine  whether  a reasonable person  in  the same  factual situation  would believe  that they  have been detained  against  their will.  The final  element  of false  imprisonment  involves  determining  whether  there is  a legal basis  for the detention.  Many legal bases for detention for exist  such as  a lawful arrest  by law  enforcement .  Determining whether  probable  or a legal basis for  the detention exists  is  the key in false  arrest cases.”

146. In my humble  view, the question  of whether  or not  there is  false imprisonment  is a question of fact which  depends on  the circumstances  of each case.  As  was held  in the case of  Daniel Waweru Njoroge  &  17 Others V Attorney General supra, that the term false imprisonment and false arrest  are synonymous.  The learned  judge adopted  the holding  in Price V Phillips………where it  was held that:

“ They are different  names for the same tort and that the  gist of an action  for false imprisonment is unlawful  detention, without more.

148. Turning  to the facts of this case as  exemplified  in the testimony  of the  plaintiff and as  summarized above, the plaintiff, having  brought to the  attention of the 1st defendant  the issue of  the three cheques  which had  been wrongly issued  in Kenya shillings to an international  shareholder  who had no local bank account; and there  being no  evidence or at all  that the  plaintiff received  or retained  the original  cheques after they were returned  by  the Banque Paribas, in my humble  view, there  was  absolutely no justification for the arrest  and  detention  of the plaintiff in the  filthy cells  at Kamukunji  Police Station  where he   was denied  food, water and  even access  to his family  and lawyer/advocate  of this own  choice  for three days.

148. The plaintiff   was at  all material  times known to the police officers  as the Financial Director   of Firestone  East Africa   which, as correctly submitted by the   2nd  defendant   was a big  company  in East Africa .  The police  could have  recorded his statement and   bonded  him to  attend court  if at all they believed   that there  was reasonable  suspicion to believe  that he had committed a cognizable  offence.  They did not  have to  trick him, that he  was going to  be used as a  prosecution witness  only for them to command  his advocate to  leave after  which they  put him  on a tortuous  journey of walking him all the way through  Haile Selasie  Avenue to Kamukunji Police Station, after making him  believe that  he would be taken to  Kileleshwa  police station.

149. Although  the 2nd defendants  finally  arraigned the plaintiff in court and  charged him  with the offence  of stealing  the three  cheques, the charges, in my view, were  not synonymous  with the arrest.  There is no reason  why  the plaintiff could not  be released  on police  bond to  attend court for plea taking   since it  appears  that the police  investigators  had already made up their mind to charge him  with the offences that they  were investigating into.  In my humble, view, it appears that the police were  motivated   to arrest and  detain   the plaintiff because   he talked to them badly to the effect that they  were too junior to investigate him which statement  infuriated them and so they had to teach  him a lesson by confining him in the cells and  which in my humble  view was an  abuse of power.  In my view, the confinement   of the plaintiff  at Kamukunji police station    was motivated  by something  much more  than  a sincere  desire  to vindicate  justice. In the end, I find that the plaintiff was falsely imprisoned by the police who are agents of the state as represented by the second defendant.

150. However, I find that the plaintiff’s  confinement  in the court cells  on the date of  plea taking, pending   the processing of his  bail is  not false imprisonment  since  that is the only place where the plaintiff  could wait  while his release  on bond  was being processed by  court officials  and his relatives.

151. On the second issue of whether the plaintiff’s prosecution was malicious, it is  not in dispute that the criminal  proceedings    were instituted by the defendants  in that the  1st defendant   was the  complainant  as conceded  by DW1 and  that the  prosecution  was undertaken  by the police  prosecutors who  were agents  and or servants of the 2nd  defendant/ Attorney General.  It is also  not in dispute that   the criminal proceedings  terminated in favour of the  plaintiff who  was acquitted of the charges.  The only  question therefore is whether  there  was  any reasonable  cause and or justifiable  cause to  make  a complaint  to the police, by the  1st defendant leading to the prosecution  of  the plaintiff.

152. In Mbowa Vs Mengo District  Administration  [1972] EA  352, the East  Africa  Court of Appeal stated that:

“  The  action for damages  for malicious prosecution  is part of the common law  of England  ……The tort  of malicious     prosecution  is committed  where there is  no legal  reason for instituting  criminal  proceedings.  The purpose of the prosecution  should be personal  and spite rather  than for the  public benefit.  It originated  in the medieval writ of  conspiracy which  was  aimed  against  combinations to abuse legal process, that  is , it   was aimed at the prevention  or restraint  of improper  legal proceedings.  It occurs  as a result  of  the abuse  of the minds  of judicial  authorities  whose responsibility  is to  administer criminal  justice.  It suggests  the existence of  malice  and the distortion  of the truth.  It’s  essential ingredients  are(1)  criminal proceedings  must have  been instituted  by the defendant; that is, he  was instrumental in setting   the law in  motion against  the plaintiff and if suffices  if he says s an information before a judicial authority  who then issues  a warrant  for the arrest of the plaintiff or a person  arrest the plaintiff and takes him before a judicial authority; (2) the defendant  must have  acted  without  reasonable  or probable  cause  i.e there must  have  been no facts , which on reasonable  grounds, the  defendant genuinely thought  that the  criminal proceedings s  were justified; (3)  the defendant  must have  acted maliciously  in that he must have acted, in  instituting  criminal proceedings, with an improper  and wrongful  motive, that is  with an intent  to use the legal  process  in question for some other  than  its  legally  appointed and appropriate purpose; and (4)  the criminal proceedings must  have been  terminated in the plaintiff’s  favour, that is,  the plaintiff  must show that the  proceedings   were brought to   a legal   end and that he has been  acquitted  of the charge.  The plaintiff,  in order to succeed , has to prove  that the four essentials or requirements of malicious  prosecution, as set out  above, have been  fulfilled  and that he has  suffered damage.  In other words, the  four requirements  must “unite”  in order  to create  or establish a cause of action.  If  the plaintiff does not  prove them   he would fail in his  action .  the damage  that is claimed  is in respect  of reputation but other  damages  might be  claimed, for example, damage to property………..In other  words, the damage  results at a stage  when the criminal  proceedings  came to  an end  in his favour, whether  finally  or not…….the cause of action is not  complete  until such a time, and in the  case of an appeal, only after the plaintiff  is acquitted on appeal.”

153. In Egbema V West Nile  Administration, the  same court  held that:

“ False  imprisonment  and malicious  prosecution  are separate causes of  action;  a plaintiff  may succeed  on one and  fail on the other.  If  he established  one cause  of action, then he  is entitled to  an award  of damages  on that  issue …For  the purposes proof  that the criminal proceedings have been terminated  without being   brought  to a formal end.  The fact that no fresh prosecution has been  brought, although five years  have elapsed   since the  appellant   was discharged, must be  considered  equivalent  to an acquittal, so as to  entitle  an appellant  to bring a suit for  malicious  prosecution.  There  was no finding that  the prosecution instituted  by Ugandan police  was malicious, or  brought without  reasonable  or probable   causes.  The Uganda police, unlike  administration police,  are not servants or agents  of the respondent.  The  decision   whether  or not  to prosecute   was made by the Uganda police, who are not servants of the respondents  after investigation.  There  is no evidence of  malice on the part of the  respondent.  The appellant   was an obvious  suspect  as he   was responsible  for the  security of the office from which the  cash box  disappeared.  It cannot be said that there  was no reasonable  and probable   cause for the  respondent  instigating  a prosecution against the  appellant.  The actual decision  to do so  was taken  by the Uganda police.  As the  judge  has made no finding  as to  whether  the  instigation of the prosecution  was due to malice  on the  part of the  respondent, this court  cannot  make its  own finding.  The circumstances  of this case  reasonably  pointed to the appellant  as the suspect  and there  was not  sufficient  evidence that  in handling the  appellant  over to Uganda  police   for his case to be investigated and,  if necessary, prosecuted, the respondent   was actuated  by malice.”

154. In Gitau V Attorney General [1990]  KLR 13, Trainor  J stated that:

“ To  succeed  in a clam 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 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 Secondly, he who sets  the law in motion  must have done so without reasonable  and probable  cause.  the responsibility  for  setting  the law in motion  rests  entirely  on the officer  in charge of the police  station.  If the said  officer believed  what  the witnesses  told him  then  he was justified d in acting  as he did  and the court  is not  satisfied  that the plaintiff  has established that  he did  not believe  them or  alternatively, that he proceeded  recklessly  and indifferently  as to whether  there  were  genuine  grounds  for prosecuting  the plaintiff or not.  The court  does not consider  that the plaintiff  has established  animus malus, improper and indirect motives, against the  witness.”

155. The above  cases no doubt establish  the conditions that  must be satisfied  for a plaintiff  to succeed  in a claim   for malicious  prosecution.

156. Having already found that the  prosecution  was instituted  at the instigation of  the 1st  defendant as  the  complainant  and investigated  and prosecuted  by the  2nd defendants  agents/servants  and that the prosecution terminated  in favour of the plaintiff, the next yet very important question is whether  the making of the said report   by the  1st defendant  was   malicious  and whether  the police, In charging  and prosecuting  the plaintiff acted  with improper motive other than  that for the achievement of the ends of  justice.  Lack of  reasonable   and probable   cause  may be  evidence  of malice.

157. According  to the plaintiff, the  1st defendant Bank through its  employee Charles Gathiru maliciously and without   justifiable  and probable  cause  made a false report  with the  police unit on 16th June, 2000 alleging that the plaintiff  had indicated  to the 1st defendant  that he  was   holding  the original  cheques  and would  sent them in due  cause after which the commissioner of  police caused  the plaintiff to  be arrested  and charged  in criminal  437/2000 which culminated  in the deprivation  of the plaintiff’s  liberty and prosecution.

158. Further, that the bank had no  reasonable  and probable  cause to  report  to police  about the plaintiff having  participated in  any fraudulent  disappearance  of the cheques since DW1 Mr  Waweru Mathenge   stated  that he did not know why the plaintiff   was prosecuted  when he said “ I am  aware that  there  was  no evidence pointing  specifically to the  plaintiff  as  the person who perpetuated  the conversion of  the cheques.  We do  not even know  why  he was charged."

159. Although the plaintiff’s  counsel  strongly submitted that the bank  must have  specifically  mentioned  the plaintiff  to the police as the person  being  responsible   for the conversion of the cheques, I disagree.  The plaintiff   in his own defence  evidence in the trial court   stated that  he received  a mail from the shareholder Bank Paribas in Switzerland.  That the letter   was clearly stamped as second  request  dated 18th February  1999.  Attached  to that letter   were copies of the three dividend   cheques   which the criminal trial court marked  MF1-D2.  He also  stated  that as  the General  accounting Manager of Firestone, he noticed that the  shareholders  complaint   was genuine.  He then added   “The shareholder  did not  know that  the dividends originated from Barclays  Bank.  That is   why they  addressed  the letter to  Firestone .”

160. From the above testimony of the plaintiff, and the conclusion by the trial magistrate that  although the original cheques  may have  been send to Firestone but that  there  was no evidence  that it  was the plaintiff who  used to  open the  mails and  that therefore  there  was no evidence that he accessed  the original  cheques  that  were later  converted, this court  infers that  indeed it  was  reasonable  and probable for the 1st defendant  to believe  that the  cheques   having been  mailed  to Firestone, then Firestone   must have  known where   they were.

161. I also find no malice  in the 1st defendant’s  reporting to police  that the 1st defendant had lost  original  cheques which had  been  returned through Firestone.  There is no evidence to show  that the  1st defendant  determined for the 2nd defendant the specific  offences with which the plaintiff  was to be charged.

162. Upon receipt  of a complaint like  in the instant case, that indeed, original  cheques  were lost and  had been encashed  at  Family bank, it  was upon the  2nd defendant  to investigate  thoroughly before deciding  who  to charge with  the relevant  statutory offences. There is no  evidence on record that  the 1st defendant  insisted  on a particular  charge against the plaintiff.  The fact that  investigations by the police were  shoddy does not  mean that the 1st defendant  had no  reasonable  or probable  cause to  complain  against the  plaintiff.

163. The only  thing that  I fault   the 1st defendants for is their reckless/negligent manner  of handling  the transaction in that upon being  reminded  that the cheques as issued  to the shareholders were in Kenya shillings and not  in foreign currency; and  even before  stopping  those cheques   and without   seeing the original  cheques, the 1st defendants went ahead  and  paid the  shareholder  before stopping  those other three cheques  thereby exposing their  accounts to  risks of being accessed by fraudsters who had  accessed the cheques.

164. Indeed, I find that there  was no  reason for charging  and or prosecuting  the plaintiff with the material offence since  there  was no evidence  that  he  was in possession of the  original  cheques.  But that decision  to charge  him lay with the  police who  investigated  the complaint.  It is for  that reason  that I agree with the trial  court that “ there  was  no evidence  linking  the plaintiff to the case at  all  and his charging  amounts to nothing  but an act of  malice  on the part  of the investigating  officer.  The officer   fabricated  this case  against him  without a basis.  This kind of  behavior  should  be stopped by the investigating officers superior.”

165. The conclusion  by the trial magistrate  at J9 demonstrate how any  reasonable  person investigating  such a  complaint  could not have concluded  that there  was  a prima facie  case against  the plaintiff linking  him to the  fraud  and the police should  therefore  have used  the plaintiff as a  prosecution witness.  But that decision could only have been  arrived  at after  investigations  since there was no evidence  that the 1st defendant’s  servants/agents were  criminally involved  in perpetuating  the fraud which led  to the cheques  being encashed  by criminals.  This court also  fails to find that  malice can be found on the part of the  1st defendant  who made  mistakes  of issuing  Kenya  shillings cheques   instead of foreign  currency.

166. I reiterate that Barclays Bank  made a report  of the loss of  funds from their  account  which  loss  was  linked  to the three  cheques  initially issued  to the  foreign  shareholders  of Firestone as  dividends .  But I refuse to find that  the report as conveyed  to the police  was false.  I also  refuse to find that the cheques   were received  by Barclays  Bank since  the plaintiff  made it clear that the shareholders send him the reminder letter with  photocopies of the original cheques to his office  and there  was no evidence that the first  letter  returning  the cheques was send to Barclays Bank.  There   was no evidence   that the Barclays Bank officials  must have  received  the said cheques  and worked in cohorts  with the fraudsters from whom the said  sums of money   were received   by Barclays, to  encash the cheques  after  the Banque Paribas Suisse SA had been paid  the dividends  in the correct currency.

167. In  James Karuga  Kiiru V  Joseph  Mwamburi  &  3 Others  Nairobi CA NO.  171 of 2000, the court held that:

“ To prosecute  a person is not  prima  facie tortuous, but to do so dishonestly or  unreasonably is.  And  the burden  of proving  that the prosecutor  did not  act honestly or reasonably lies  on the person  prosecuted.”

168. In the present  case, the plaintiff's  evidence  was clear  that when the  investigators  first called on him and he  recorded  a statement  concerning  the complaint, they told  him that  he would be  a good  prosecution witness. However, the police changed   tact  when he went there with his advocate Mr Wilfred Nderitu.  They treated the plaintiff  roughly  and that is when  he told them off  that they were too junior to interrogate  him.  In my humble view, from the  way the investigators  treated  the plaintiff,  walking him to down Haille Sellasie Avenue to Kamukunji Police Station after making him believe that he was being taken to Kileleshwa Police Station, denying  him access to his lawyer  and family  and denying  him food or  water, the police were hell bent to  teach the plaintiff some  lesson, that  after all they   were not  junior officers  and that they were capable of  doing anything to him. To that extent, the police acted  dishonestly and unreasonably.

169. In Kagane Vs Attorney General [1969] EA 649, the court  set the test for  reasonable  and probable  cause in  the following  terms:

“ Reasonable  and probable  cause is an honest belief  in the quilt  of the accused based upon a full conviction  founded upon reasonable  grounds of  the existence   of a state of  circumstance  which assuming  them to be  true, would  lead to  an ordinary  prudent   and cautions man placed  in the position of the  accuser  to the conclusion  that the person  charged  was probably  guilty of the crime  imputed.”

170. In the instant  case, I do not find that the witnesses statements  proved that  the plaintiff   committed the offence  with which  he  was charged, but  were  useful  in tracing  the movement of  the cheques  from Switzerland  to Kenya  and how those cheques were encashed  by  fraudsters.  Therefore, the 2nd defendant  cannot  succeed  in claiming  that its agents  believed  in the witnesses and that the  investigators  had genuine   grounds of  charging  the plaintiff  with the offences  and  his  subsequent  prosecution.  In  my view, the 2nd defendant’s agents  proceeded  recklessly and  indifferently.  In other words, in as much as the  complaint   was justified  as it nabbed  the two fraudsters , I do  not think that  the prosecution  of the plaintiff jointly  with the two fraudsters,  in the absence of  evidence on how the  two fraudsters  accessed  the three cheques  and encashed  them  was justified.

171. The evidence against  the plaintiff  was not  only thin, but that it  was an improper  and wrongful motive for the 2nd  defendant’s agents  to have  charged the plaintiff   and prosecuted  him in the circumstances of this case.  In Stephen Gachau Githaiga & Another  V Attorney General [2015] e KLR  the court held that:

“ 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 words  the police or any other prosecution  arm of the  government is not   a mere conduit  for complainants.  The police  must act impartially and independently on receipt  of a complainant   and are  expected  to carry out thorough  investigations  which would  ordinarily involve  taking into  account  the versions  presented  by both the  complainant  and the suspect.  However, where   the police  deliberately  decide  not to take  into account the version of the  suspect  and act on  a story that  eventually turn out  to be improbable  and which no ordinary   prudent  and cautious  man would have  relied upon, that failure  may constitute  lack of  reasonable   and probable  cause for the  purposes of  malicious  prosecution.”

172. I agree that   charging the plaintiff  and failing to call any evidence  linking him to the offence  amounted to malice  on the part of the police.  On the part of the 1st defendant, I am unable to find any   malice  since there  is evidence that they  even contemplated withdrawing  the complaint against the plaintiff during the trial of the criminal case, an indication that on their part, they had not seen the reason  why the police charged the plaintiff. This was also stated in this court by DW1 who stated that the Bank did not understand why the plaintiff was charged with the offence.

173. As  was held  in the Githaiga  case, absence  of any   evidence  as to  the facts  and circumstances upon  which the 2nd defendants  relied to charge and prosecute the plaintiff, the court  can only  conclude    that there   was no probable  and reasonable  cause for  charging  the plaintiff  and that in itself constitutes  malice  for the purposes  of the tort  of malicious  prosecution.

174. Furthermore, the  2nd defendant   or its  agents  did not  call any evidence  in this case to  challenge   the plaintiff’s  case against  them.  Instead, they filed very detailed and defensive submissions  and attached  authorities  that are very  useful to this case.  However, pleadings  and submissions  however  strong  and well choreographed they may be,  are not  a substitute  for evidence.  Pleadings  are only but unsubstantiated  claims  whereas   submissions  are what  is called  marketing  strategy of a party. (See Robert Okeri  Ombeka V Central Bank of Kenya [2015] e KLR  citing Daniel  T. Arap Moi V Mwangi Stephen Muriithi & others  CA  240/2011.

175. I find no evidence   was adduced  by the 2nd defendant to justify   their decision  to charge  and or prosecute  the plaintiff.  In Thomas Mboya  Oluoch & Other Vs Lucy Muthoni Stephen & Another Nairobi HCC 1729 of  2001 Ojwang J ( as he then was ) stated that:

“ Unless and until  the common law  tort of  malicious prosecution  is abolished  by Parliament, policemen  and prosecutors  who fail to act in good   faith, or are  led by  pettiness, chicanery or malice in initiating  prosecution and in seeking  conviction  against  the individual  cannot  be allowed  to ensconce  themselves  in  judicial  immunites  when their  victims  rightfully  seek recompense…….I do not expect  that any  reasonable  police officer or  prosecution  officer would lay charges  against  anyone, on the basis  of evidence  so questionable, and so obviously crafted  to be  self  serving.  To deploy the  state’s prosecutorial  machinery, and to  engage the judicial  process  with this   kind of  litigation, is  to annex the public  legal services  for malicious purposes”.

176. This  court  refuses  to accept the  2nd defendant’s counsel’s submissions  that the  police   in prosecuting the plaintiff  had good intentions  and that they  were only  performing  their duties by  investigating  a complaint filed  by the  1st  defendant, yet the same police refused to cooperate with the Attorney General for purposes of giving evidence in this case to shed light on why they arrested, charged and prosecuted the plaintiff. The  2nd  defendant  did  not adduce  any evidence  of that good   intention  to rebut  the evidence of  malice on their  part as evidenced  by  the conduct  of the police officers at the time of interrogating  the plaintiff.

177. Further, the fact that the plaintiff   was acquitted  under  Section 215  of the Criminal  Procedure Code does not mean that  the police  had reasonable  and or probable  cause to charge him.  The decision  to place the plaintiff  on his defence   for  reasons that  there  was  prima facie  case established after hearing the complainants was in the discretion of the trial magistrate . nonetheless, that decision was not backed by  any elaborate  reasons, noting that  the accused   had been jointly charged with  the actual fraudsters who were nonetheless acquitted.

178. I  agree  that not  every prosecution that leads to an acquittal is malicious  prosecution and  add that  the  presumption that an acquitted person is completely innocent is rebuttable  in that poor  investigations or insufficient  evidence   will easily let off  the  hook a notorious  criminal.  I also  take judicial notice that   the presumption  that  every convicted  person was  properly  convicted  is a  rebuttable  one and that is  why an  appellate  court may find  such a  conviction unsafe.

179. In the cases  cited by the  2nd defendant  such as Joseph Gicheru Muchiri V Moses Kimenchu  Waigwa HCCA 119/1999; Mariko Mosegere  Omariba V Permanent Secretary Ministry of Health and  2 Others[2014] e KLR and  Nzoia Sugar  Company Ltd  V Fungututi,(supra) where  the learned judges found that  the plaintiffs’  prosecutions  were not malicious, it is clear that the learned judges also found that  there  was no evidence  of ill will or improper  motive  or spite  in the servants  of a company  and also that no evidence  of malice was exhibited  unlike  in this case where  I have found  that the conduct  of the  2nd defendant’s   investigating  officers  who made  a decision  to charge the  plaintiff  pointed   to malice.

180. I also agree with  the 1st defendant’s  submissions  that their evidence    was  clear that  the 1st defendant’s  3 cheques   were encashed  by Mr  Owen Thiongo  Kariuki  and Mike  Thiongo  Kariuki   who were not  the intended  beneficiaries  and that it  was therefore reasonable  to report  to the police to carry out  investigations  and that it  was  in the wisdom of the police to  gather  necessary  evidence   to identify  the persons  who  were culpable, before  prosecuting  them with the  offence. The 2nd defendant has not claimed that the decision to charge the plaintiff was informed by the incriminating evidence by the two fraudsters who stole the money from the 1st defendant.

181. In Catherine  Wanjiku  Kariuki Vs Attorney General  & Another [2011] e KLR the court  held that:

“ It is  the duty of  every  citizen to report  to the police any crime  suspected, upon reasonable  ground, to have  been committed, or being  committed.  Once that civic duty is done, it  is the business  of the police  to independently investigate  the matter and arrive at  their own  conclusion on whether to  charge anyone  with such  crime.”

182. I also agree that in the circumstances of  this case, the decision in Douglas  Odhiambo Apel & Another V Telkom(K) Ltd CA  115/2006  is applicable. In that case, the Court held that:

“ The plaintiffs  were arrested  and charged   by the police.  And the  prosecution  was undertaken  by the Attorney General (now Director of Public Prosecution) as  public  prosecutor.  Telkom Kenya  was  merely  a complainant.  The decision  to charge  and prosecute  the plaintiffs  was taken by the police  and the  Attorney General.  Telkom Kenya as a  complainant  would not  have been  involved  in the process.  Once Telkom Kenya   had made  a complaint to the police, it  was left to police to investigate  the complaint  and decide  whether  or not to charge  the plaintiffs.  That is why  in a claim for damages  for unlawful  arrest, false imprisonment  and malicious  prosecution, the proper  defendant  is always  the Attorney General.”

183. The plaintiff in this case did not establish any malice on the part of  the  1st defendant’s  witnesses.  Furthermore,  as   was held  in  James Karuga  Kiiru  Vs Joseph Mwamburi & 3 Others  CA Nairobi 171 of  2000;

“  The   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  words,   the police  or any other prosecution  arm of the government  is not  a mere  conduit of  complaints……..”

184. Moreover,  as  was  observed by Aganyanya J in Socfinac Kenya Ltd  V Peter  Guchu Kuria that:

“ when there  is a case  of suspected  theft  the first step is  to report  the matter to police who,  in their  own way  find out how to carry  out  investigations.  And it  is upto  the police to  take further   steps like  taking a suspect to  court if they have sufficient  evidence against  such suspect  to warrant such action.  This then is the action by police and the state  should be involved  or joined  in such   suit and that the complainant  should not be  blamed  for making such  report  to police.  What is  of great   significance  in such a case  is whether  or not  there is  reasonable   and  or probable   cause for the  arrest and  or prosecution of the culprit.  And  the onus of proving that  there  was  no reasonable  and probable  cause for  the arrest  and prosecution of the suspect  lies on him/her  who queries   such  arrest  or prosecution.

As to the  prosecution of the respondent, the complainant  could not  force police  to do so when there  was no evidence to take them to court.  Police  carry  out investigations  before taking  suspects to court and  there are  various incidents  when police  have declined to prosecute  a suspect  when investigations  have  disclosed no offence  to  warrant  thus.  If   the respondent’s  case fell in the  latter category   then I am  sure they  would not have taken to court.  That a  suspect   was acquitted of a criminal  case is not  sufficient ground for filing 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.”

185. The above  decision  of the High Court was cited with  approval in Robert  Okeri  Ombeka  V Central Bank of Kenya  [2015] e KLR  a Court of Appeal decision , wherein the Court of Appeal  further observed that:

“ Public   policy  favours  the exposure of crime, and the  co-operation of citizens  possessing  knowledge  thereof  is  essential to effective  implementation of that policy.  Persons  acting in  good faith  who have  probable  cause  to believe  that crimes  have been  committed should not be deterred from  reporting them by the fear  of unfounded  suits by  those accused.”

186. There  was also  no evidence  of the 1st defendant  insisting that the plaintiff must be charged  or prosecuted, although  there  was  evidence that  indeed  the  three cheques   issued to the  shareholder in Switzerland were converted by some crooks who were nonetheless acquitted  although they paid up the money when they were sued for recovery hence I find that  there  was reasonable   and probable  cause to report  to the police to  investigate.  I therefore find that the tort of malicious prosecution   had not been proved against the 1st defendant.

187. On whether  the plaintiff suffered  any loss and  damage as a  result of being  falsely  imprisoned  and maliciously prosecuted,the plaintiff testified that he  was  humiliated,  and confined  in deplorable conditions, he  incurred  expenses  in defending himself  in the criminal case  and that his contract   with  Firestone   after new management  the Japanese  Investors Bridgestone  took over and  that he could  not find alternative  employment  because of  the dent and  taint  on his reputation.  He also claimed for damages for defamation of character following the publication   of the pendency of the charge against him in the newspaper.

188. Concerning the claim for  damages for  defamation of character, I must   from the onset make it clear that that claim  in not available  to the plaintiff  as against all the defendants  for reasons that to succeed  in a claim  for defamation, such  claim must  be brought  within  12 months  from the date  when  the cause   of action  arose.  It is not  a claim that is  necessarily  hinged on the outcome  of the prosecution of the plaintiff.  This is pursuant  to Section 4  of  the Limitation of Actions  Act Cap 22 Laws  of Kenya.

189. In addition, the publisher of the article  that reported  that the  plaintiff  had been charged  in court   was not made a party to  this suit.  In addition, reporting  the existence  of  a criminal  charge  against the plaintiff, which  was  in any event,  was  the truth, was in my humble  view, not defamatory or at all.  Consequently, that claim  for damages for  defamation  of character  must fail.  Further, the claim  was never  pleaded  as required  under Order  VI Rule  6A of the Old  Civil Procedure  Rules(see the  case of Byrum Kenneth  Olenja Vs  Michael Opundo  & Another  [2011] e KLR.

190. However, as was   held  in Dr Willy  Kabenuka  V Attorney General Kampala  HCC No. 160/1998, a plaintiff who has  succeeded  in his claim  is entitled to  be awarded  such sum of money as  will so far as possible  make good  to him what he has  suffered  and will probably  suffer as a result of  the wrong done to him  for which  the defendant  is responsible.

191. In the instant case, i find that the plaintiff who was a Manager  of Accounting Services at Firestone East Africa Limited  was falsely imprisoned and maliciously prosecuted.  On  the basis   of the authority  of Daniel Waweru  & 17 Others  V Attorney General [2015] e KLR  where  the plaintiffs  were taken to  Mukurweini Police station  where they  were placed  in an overcrowded  police  cell littered  with urine and    human waste  and poorly  ventilated  and detained for one night, they  were forced to sit on the floor, the court awarded them  shs  100,000 each  as general damage for false imprisonment.  In the present case, the plaintiff’s counsel submitted for shs  600,000.  He also prayed for  exemplary   and punitive damages  based on the decision of  Chrispine Otieno  Caleb V Attorney General [2014] e KLR   where the Honourable  Odunga J  awarded  the plaintiff  shs   500,000 punitive   and exemplary damages for  being unlawfully  held in custody  for  4 days.

192. The  1st defendant  made no submissions on quantum  of damages  whereas  the  2nd defendant  too urged the court to dismiss the plaintiff’s  suit   and award him nothing.

193. In awarding  the damages that I have been urged to  make, I take  cognizance of the established  principles  and as  reiterated  in the Daniel Waweru  Njoroge  & 17 Others V Attorney General (supra) that:

a. Damages   should not be  inordinately  too high or too low.

b. Should be  commensurate  to the injury suffered.

c. Should  not be  aimed at enriching  the  victim   but should be aimed  at trying to restore  the victim  to the position he  was in before  the damage   was suffered.

d. Awards s in past decisions  are mere  guides     and each case  depends on its own  facts.

194. Applying  the above  principles  to this case, I would award the plaintiff a sum of shs  200,000 general damages, and shs  300,000 exemplary  damages for the tort of false imprisonment. O

195. On the claim for  malicious prosecution I would, on the strength  of the authority of Naqvi Syed  Omar Vs  Paramount  Bank Ltd  & Another  [2015] e KLR  award the plaintiff  shs  2,000,000 general damages. I would also award him   shs  400,000  exemplary  damages for reasons  that the 2nd defendant’s  action  was  calculated  to massage  the ego of  the police officers  who had been  told by  the  plaintiff  that they were too junior  to interrogate  him  at the expense  of the plaintiff.  I do not agree with the  plaintiff that his prosecution  was  meant  to shield  employees  of Barclays Bank from prosecution.

196. The plaintiff also claimed for damages  for deprivation of liberty  and denial of right to legal  representation  and access  to family  and friends. In my humble view, to award damages  for false imprisonment, malicious  prosecution  and separately  for deprivation of liberty will be  to duplicate the awards, having  found that the  arrest  and confinement  of the plaintiff  and his  subsequent  prosecution which are  all done  without reasonable  or probable  cause  and or with malice  was  in essence, abuse of legal process.

197. Accordingly, I decline  to make any separate  award  under the  claim for  deprivation  of liberty as it is  included  in the award under  false imprisonment.

198. On the claim for denial of legal  representation, based  on the authority  of the Standard  Newspaper & Another Vs Attorney General &  Others, thePlaintiff submitted for a sum of  shs  10,000,000 general damages.  However, the  plaintiff did not  lay any basis for this claim  which  was not pleaded  unlike  in the cited  decisions wherein the plaintiff specifically sought for  damages for violation of  the fundamental  rights.  That being  the case, I find  no ground upon which  to award  separate  damages for denial  of access to legal   representation and access  to family and  friends.

199. The plaintiff  claimed that he lost  job prospects  and prospects of his contract  being renewed  by the new  management  at Bridgestone  who took over from Firestone  East Africa.  He also stated that  he lost  benefits.  However, it is clear from the evidence that the plaintiff  received a lot  of support  and empathy from the employer during  the pendency of  the  criminal trial.  Further, it   was the  plaintiff’s  own testimony that his  contract  formally came to  an end and not  that he  was  terminated  prematurely  due to the  pending criminal  trial.  Renewal of an employment  contract  is in the  discretion of the employer.

200. In the absence of    any evidence  that non renewal  of his contract   was due  to the tainted image  created by the  criminal charges,  I find that   the plaintiff  has not proved  any such claim.  Further, there  was no evidence  that the plaintiff lost  prospects  of getting any  alternative  employment  at that young age  with another employer.  He did not   produce any evidence of  what alternative  job was  available that  he could not be considered for employment because of  the criminal case. Accordingly, I find that  the claims  for general damages  related to employment  related defamation are not  proved and decline to grant them.

On  special damages,  the plaintiff  claimed for  shs  100,000 legal fees  for defending  the criminal proceedings  and transport cost of  22 trips  amounting  15,400. The law  on special  damages  is that  it must be  specifically pleaded  and  strictly  proved.  In the  instant case, the plaintiff  pleaded for  shs  59,000 legal fees and shs  10,000 travelling  expenses.  However, he produced   PEX 11 fee note dated 13th June  2002 from Donald B. Kipkorir  Advocate addressed to Firestone  East Africa [1969] Ltd. A fee note is not a  receipt or evidence of payment.  It is equivalent to an invoice. Furthermore, the  fee note which  was  discounted  by 50% from sh100,000 to sh50,000 was addressed  specifically   to Firestone  East Africa  [1969] Ltd and   not the plaintiff. There is no evidence that the plaintiff  paid to  Mr Donald  Kipkorir  Advocate legal fee of shs  59,000 or  even shs  100,000 as pleaded and  submitted.  Firestone East Africa [1969] Ltd  are not  parties to  this suit  and neither  did the plaintiff’s employer testify  and/or  produce receipts  seeking any reimbursement  of the sums that it may have paid to the plaintiff’s advocate.

In the  Great  Lakes Transport  Company(U) Ltd V Kenya  Revenue  Authority [2009] KLR  720, the Court of Appeal  considered  how proof  of payment  in a claim for special  damages  may be  established  and distinguished  an invoice  from a  receipt  in  the following  manner:-

“ Although the claim  was pleaded  at paragraph 7(b)  of the amended plaint  and prayed for in the prayers, the proof  advanced in respect of it did not  meet  the required  standard.  There  was no receipt  produced  to show that  actual cash  was paid, or any  payment  made  for the alleged  purchase  of tyres.  A mere invoice   as the one produced  in evidence  was  incapable  of proving  purchase.  The  claim could have  been proved  very  easily  by producing   either a receipt  from Ms  General Tyres Sales Limited which  was alleged  to have  supplied  the alleged tyres  or a  witness  from that company  to confirm that indeed  money  changed hands  when the alleged  new tyres were acquired by and delivered to the appellant…..[There]  was no evidence that the appellant  bought new  tyres for the subject  vehicle. Mr Gikandi has endeavoured  to show that  an “invoice” is different  from a “ proforma invoice” and  has made   effort to  persuade  us that an invoice  should be  treated as a  “receipt” with respect, we see  no merit  in that argument  and take  cognizance  of the  fact that   an invoice  is not a receipt  for goods   supplied  unless it  is specifically endorsed  to the effect  that the goods   for which the  invoice   was prepared  were paid for.  In such case  the endorsement on it can  be treated as receipt  for payment.  What we mean is that in case the goods for  which  an invoice  is issued  have been paid  for, one would  normally  expect endorsement   such as the word ”paid” on the invoice  and that  would turn the  status if the invoice into a  receipt. Otherwise, on our minds, a proforma  invoice  is given in respect  of an advise   sought from a  supplier  as to what  the cost of  the goods   wanted  would be, ie quotation given on  inquiry  as to the  price of   the goods sought  and an invoice  is given in cases  where an order  for supply of goods  has been made but  payment   is not yet made.  In either  case, neither of the two documents  amount to  a receipt.”

201. Accordingly, I disallow that special damage for want of proof.

202. On the claim for travelling costs, equally, though  shs  10,000 was pleaded, shs  15,400  was  claimed  in the submissions. No receipt or acknowledgement  was produced  to prove any of the  two different  figures.  Accordingly, whereas I have  no doubt  that the plaintiff  was  defended  in the criminal  proceedings  and that he must  have travelled to  attend court  as per  the court   proceedings produced   as exhibit,  I have  no evidence  of the actual  expenditure  incurred  on those  two items.  Accordingly  I decline to  make any  award for special  damages  for travelling costs for  want of proof.

203. The plaintiff also submitted  that  the court should  award him  interest at  court rates from the date of  filing suit  until payment  in full.  No basis  was laid for that prayer.  Nonetheless, the law is clear  that interest on general damages  accrues  from the date  of judgment  until payment in full whereas  interest on special damages  accrues, from date  of  filing suit  until payment  in full ( see  Miguna Miguna  Vs the Standard  Ltd  &  4 Others  [2016] e KLR.

204. In the end, I find that the plaintiff has not proved  his case against  the  1st defendant  on a balance of probabilities.  I however find that the plaintiff’s claim  against  the  2nd  defendant is proved  on a balance of probabilities,  that the  2nd  defendant set the law in motion and without reasonable or probable cause maliciously prosecuted the plaintiff and falsely imprisoned him as a result of which the plaintiff suffered loss and  damage as a consequence thereof.

205. Accordingly,  enter judgment for the plaintiff on liability against the second defendant Attorney General and I award him  general damages  as against the  2nd defendant  only as follows:-

a. General damages for  false imprisonment  shs  200,000

b. Exemplary  damages for  false imprisonment  shs  400,000

c. General damages for malicious  prosecution shs  2,000,000

d. Exemplary  damages  for  malicious  prosecution shs 400,000

Total damages  shs 3,000,000. All other damages   claimed are dismissed for want of proof.

206. I also  award the plaintiff the costs of  the suit  and interest to be  calculated at court rates  from the date of this judgment until payment in full.

207. The suit  against the  1st defendant  is dismissed   without costs  for reasons  that had the  1st defendant  not been  careless  in the manner  in which it  handled  the payment subject of  the 3 cheques which were stolen, from the time of  issuance   in Kenya shillings instead of  foreign currency leading to their return  and interception by fraudsters to the time  they were replaced  without  stopping  them before  replacing  them, this case would not have arisen.  For that reason the 1st defendant Equity Bank cannot be allowed to benefit from their own negligent acts.  Accordingly, I order that they bear their own   costs of this suit as dismissed against them.

Dated, signed and delivered in open court at Nairobi this 6th day of September, 2016.

R.E. ABURILI

JUDGE

In the presence of :

Mr B.M.Musau for the plaintiff

Mr Otieno h/b for Mr Kimani for the 1st defendant

Miss Kerubo for the 2nd defendant

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