Geoffrey Kiura Mwamba v David Gitari Mageu, Attorney General & Elijah Wachira [2019] KEHC 4095 (KLR) | Malicious Prosecution | Esheria

Geoffrey Kiura Mwamba v David Gitari Mageu, Attorney General & Elijah Wachira [2019] KEHC 4095 (KLR)

Full Case Text

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT CHUKA

HCCA NO. 13 OF 2018

GEOFFREY KIURA MWAMBA.......................APPELLANT

VERSUS

DAVID GITARI  MAGEU........................1ST RESPONDENT

THE HON. ATTORNEY GENERAL.....2ND RESPONDENT

ELIJAH WACHIRA................................3RD RESPONDENT

(Being an Appeal from judgment and decree of the Senior Principal  Magistrate's Court at Chuka Civil Case No. 66 of 2012 by Hon. A.G.  Kibiru on 5/10/2016 .)

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J U D G E M E N T

1. This is an appeal by GEOFREY KIURA MWAMBA (the Appellant  herein) against the decision of the Subordinate Court in Chuka Senior Principal Magistrate's Court Civil Case No. 66 of 2012 where the  Appellant had been sued together with the Attorney General (2nd  Respondent) and 3rd Respondent (Police Officer) by the 1st Respondent for  malicious prosecution.

2. Brief Background of the case at the lower Court

The 1st Respondent herein or the Plaintiff in the said lower court claimed  that the P.C Elijah Wachira (a police officer) at the behest of the Appellant  instituted Criminal proceedings conducted by the 2nd Respondent (Attorney  General) based on what he termed as false, outrageous and unreasonable  invasion of his fundamental freedoms and human rights.  He therefore sued  for damages for malicious prosecution.  The criminal case in question was  cited as Chuka Principal Magistrate's Court Criminal Case No. 547 of 2011  where the court acquitted the 1st Respondent  under Section 210  Criminal Procedure Code for having no case to answer.  In that Criminal  Case, the 1st Respondent had been charged with interfering with demarcated  boundary contrary to Section 33(2) of the Lands Adjudication Act by  uprooting sticks that were meant to be beacons marking the boundary  between the Appellant and the 1st Respondent.  The trial court as I have  observed above found that the prosecution did not establish a prima facie  case owing  to inconsistent and contradictory evidence adduced by the  prosecution.

3. The 1st Respondent upon acquittal instituted civil action for malicious  prosecution  and the trial court found that the criminal proceedings was  instituted by the Appellant and the 2nd and 3rd Respondents herein and that the police proceeded with the case without establishing the weight of the  evidence before commencing the said criminal proceedings.  The Court also  found that the conduct of the defendants (Appellant herein and 2nd and 3rd Respondents) was unreasonable, totally unjustified and actuated by malice.   The trial court then proceeded and awarded the 1st Respondent  Kshs.800,000/-

4. The Appellant felt aggrieved and preferred this appeal raising 4 grounds  namely:-

i. That the learned Senior Principal Magistrate erred in law and in fact in failing to appreciate the issues raised by the Appellant's defence.

ii. That the learned Senior Principal Magistrate erred in law and fact in holding the Appellant liable for malicious prosecution.

iii. That the learned Senior Principal Magistrate erred in law and fact by awarding the 1st Respondent  kshs.800,000/-.

iv. That the judgment of the learned Senior Principal Magistrate was against the weight of the evidence and that the award of Kshs.800,000/- was excessive and unwarranted.

5. The Appellant's case

The Appellant in his written submissions has contended that he is the  registered owner of that parcel of land known as Kathwana/720 which  borders the 1st Respondent's land parcel No.Kathwana/845.  He  further  claims that he was informed by one Ndatho Kireru, the Sub Area Manager,  that the 1st Respondent had uprooted the fence marking the said boundary  between the two parcels and that he reported the matter to Chuka Police Station for action.  It is the Appellant's  contention that the criminal case  against the 1st Respondent was because of a defective charge sheet.  The  Appellant avers  that the decision on what charges to be preferred against   the 1st Respondent laid with the 2nd and 3rd Respondents and not himself.

6. The Appellant contends that he dutifully gave his evidence at the criminal  trial which in his view was not challenged. He submits that the 1st  Respondent did not prove his case against him at the trial.  He has cited the  decision in Susan Mutheu Muia -vs- Joseph Makau Mutua [2018] eKLR  where the court listed the  elements which must be proved for a party to  succeed in a claim over malicious prosecution.  The elements are namely:-

(a) The prosecution was instituted by the defendant or by someone whose acts he is responsible.

(b) That the prosecution was instituted without reasonable and probable cause.

(c) That the prosecution was actuated by malice.

(d) That the prosecution was terminated in Plaintiff's favour.

7. The Appellant insists that his role ended with the report he made to the  police and that it was the police who investigated the case and decided to  prefer the charges.  He has therefore absorbed himself from any blame.

8. The 1st Respondent's Case

The 1st Respondent in his written submissions has contended that the suit at  the lower court arose as a result of Criminal Case No.547 of 2011 in which  he and co-accused were acquitted owing to a defective charge sheet.  He has  further submitted that the Land Registrar summoned him on 11th August,  2012 following a boundary dispute with the Appellant and  that it was the     Appellant who was found by the District Surveyor to have encroached onto  his land.

9. The 1st Respondent contend that the trial traumatized him and made him  use resources to engage an advocate to defend him.  He has termed this  appeal as a way of frustrating from realizing the amount awarded to him  adding that this appeal is in bad faith. He cites instances of bad faith as  follows:-

a) That the Deputy  Land Registrar testified on an issue that was not in dispute which was the ownership of the parcel of land.

b) That the police officer preferred charges under Section 33(2) of Land Adjudication Act which was non existent and hence defect in the charge sheet.

c) That the Appellant claimed he was tipped off by a Sub Area Manager whom he did not call as a witness.

9. Analysis and determination

There are two main issues in this appeal which are namely:-

(a) Whether the 1st Respondent proved his case to the required threshold

(b) If so, whether the award of Kshs.800,000/- was excessive.

10. (a) Whether the 1st Respondent's case on malicious prosecution was  established and proved to the required standard.

It is necessary to point out the necessary ingredients for the court to ascertain  that a cause has been properly made  out for a case on malicious prosecution.   What are these elements? In Mbowa -vs- East Mengo District (1972) EA and Murunga -vs- Attorney General [1979] KLR 138, the elements listed as  follows namely:-

a) The Plaintiff must show that prosecution was instituted by the defendant, or by someone for whose acts he is responsible.

b) That the prosecution terminated in the Plaintiff's favour.

c) That the prosecution was instituted without reasonable and probable cause and

d) That the prosecution actuated by malice.

The court in Mbowa (supra)  observed as follows:-

" 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."

11. In view of the above decisions, it is my considered view that for a party to  succeed in a case of malicious prosecution he should prove that there is was  no reasonable cause for his prosecution, and that despite that the defendant  actively engineered his prosecution nevertheless for ulterior and malicious  purposes.  In the case of Stephen Gachau Githaiga and Another -vs- Attorney General [2015] eKLR, Hon. Justice Mativo made the following  observations:-

" Malicious prosecution is an intentional tort designed to provide    redress for losses flowing from unjustified prosecution.  Under the 1st element of the test for malicious prosecution, the Plaintiff must prove that the prosecution at issue was initiated by the defendant................................... malicious prosecution as the label implies is an intentional tort that requires proof that the defendant's conduct in setting the criminal process in motion was fueled by malice.  The malice requirement is the key to striking the balance that the tort was designed to maintain between society's interest in the effective administration of criminal justice and the need to compensate individuals who have been wrongly prosecuted for a primary purpose other than that of carrying the law into effect."

12. There is no dispute that the Appellant was the complainant in the impugned  criminal case against the 1st respondent (Criminal Case No. 547 of 2011 at Chuka Senior Principal Magistrate's Court).  He was also the defendant in  the suit for malicious prosecution which is the subject in this appeal.  By  virtue of being the complainant, it is definite that he made the complaint  which led to the arrest and prosecution of the 1st Respondent.  The element  in so far as malicious prosecution is concerned was  thus established.

13. On the 2nd element of prosecution having been terminated in favour of the  Plaintiff, again it is not disputed that that the 1st Respondent was acquitted  under Section 210 after the trial court found that no prima facie case had  been established.

14. The big question in this matter is whether there was malice or whether there  was no reasonable/probable cause for the 1st Respondent to make a  complaint to the police.    The issue of whether there was a malice is directly  intertwined with the issue of probable cause.  While it is true that the 1st  Respondent herein was acquitted, that in itself does not necessary imply that  there was malice from those who took part in his prosecution.    In the case  of Nzoia Sugar Co. Ltd -vs- Fungutuli [1988] eKLR, the Court of Appeal  observed as follows:-

" It is trite learning that acquittal, perse, on a criminal charge is not sufficient basis to grant 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 on its servants that can be attributed to the company."

The same reasoning is also deciphered in the case of Robert Okeri Ombaka- vs- Central Bank of Kenya [2015] eKLR where the Court of Appeal made  the following comments:-

" In this appeal there is no evidence that the Respondent made a "false" report or that the report was actuated by malice or that his  prosecution was brought" without reasonable cause.  That a suspect was acquitted of a criminal case is not a 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."

15. Going back to the present appeal, this being a  first appeal, this court as an  appellate court is obligated to re-evaluate and re-analyse the evidence  tendered at the trial court and come up with own conclusion in order to determine if the trial court arrived at the right decision.  From the  facts/evidence tendered at the trial court in the criminal case  No. Chuka Senior Principal Magistrate's Court Criminal Case No.547 of 2011,  it is  apparent that the boundary beacons on the plots of the Appellant and that of  the 1st Respondent were destroyed.  There was an eye witness (PW2) to that  fact.  Another witness (PW3) a Land Adjudication officer confirmed that the complainant owned the parcel of land in issue.  This shows that he was in a  position to complain if he felt that someone had encroached or interfered  with the boundary.  The investigating officer (PW4) told the trial court that  he visited the scene and collected the exhibits of destroyed fence and took  them to the  police station.  The complainant had told the trial court that he  attempted to take the same exhibits to the chief but did not find him.  I have  also noted from the 1st Respondent's submissions that he concedes that he  was summoned to the office of the Land Registrar over the same boundary  dispute.  This in my view indicates that owing to that dispute the Appellant's  fence was probably destroyed and in my view that  formed land basis for  him to  complaint to the police.  He had a reasonable and probable cause to  complaint to the police and the police  on finding the evidence of destroyed  fence had a reasonable basis to prefer charges against the 1st Respondent  herein who had a dispute over the boundary with the Appellant.  The fact  that there was a defect in the charge sheet in my view does not indicate  that there was malice on the part of the police, much less on the  part of the  Appellant who had absolutely no role in drafting the charge that that was  presented in court.  The police and byextension the Attorney General,  then  in charge of prosecution in Kenya had reasonable and  probable cause to  prefer charges against the 1st Respondent and the fact that the trial court later  found there were inconsistencies and contradictions in the evidence  presented did not mean that there was spite, or ill will in the  decision to  charge him with a criminal offence.  In the case of Stephen Gachau Githaiga & Another -vs- Attorney General [2015] eKLR the court  observed as follows:-

" Reasonable and probable  cause has been defined to mean existence of facts which on reasonable grounds, the defendant    genuinely thought that the criminal proceedings were justified.  As was said in Kagame's Case (1969) EA 643 reasonable and probable  case is an honest belief in the guilt of the accused based upon a full conviction founded upon reasonable grounds of the existence 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....................."

16. I am satisfied based on the evidence tendered at the trial in the criminal case,  that the evidence and the circumstances obtaining would have led a prudent  person to take the same action the Appellant and the police took.  The 1st  Respondent failed to establish any malice against either the Appellant or the  police in his prosecution.  The learned trial magistrate fell into error to  impute or infer that because the charge sheet presented was defective, the  prosecution of the 1st Respondent was unreasonable and unjustified. With  respect to the finding of the trial court, it is erroneous to equate the defect in  the charge sheet with malice on the part of the Appellant and the police.  The  police could have made a genuine mistake by citing a non-existent provision  but that in my view was just an error free from malice.  The 1st Respondent  as  I have observed above failed to establish the element of malice and  connect it to the complaint made by the Appellant.  The Appellant in my  view had a genuine or probable cause  to complaint but had nothing to do  with the nature of the charges(s) to be preferred against the 1st Respondent.

17. Having found that the 1st Respondent's case did not meet the requisite  threshold of proof, obviously the 2nd issue of quontum should not even have  arisen.

In the premises, I find merit in this appeal.  The same is allowed.  The  judgment of the lower court is hereby reversed but I will not make any order  as to costs in order to promote reconciliation and good neighbourliness  between the Appellant and the 1st Respondent so each party shall meet own  costs.

Dated, signed and delivered at Chuka this 30th  day of September 2019.

R. K. LIMO

JUDGE

30/9/2019

Judgment dated, signed and delivered in the open court in presence of Murithi holding brief for Kariuki B.G. for Appellant and 1st Respondent in person.

R. K. LIMO

JUDGE

30/9/2019