Wachira v Alexander & 2 others [2022] KEHC 14198 (KLR)

Wachira v Alexander & 2 others (Civil Appeal 171 of 2019) [2022] KEHC 14198 (KLR) (6 October 2022) (Judgment)

Neutral citation: [2022] KEHC 14198 (KLR)

Republic of Kenya

In the High Court at Machakos

Civil Appeal 171 of 2019

MW Muigai, J

October 6, 2022

Between

John Kagwamba Wachira

Appellant

and

Gondocsh Alexander

1st Respondent

Reynolds Construction Company

2nd Respondent

Attorney General

3rd Respondent

(Being an appeal from the findings and orders of the judgment of the Hon. A. G. Kibiru in Machakos CMCC Civil Suit No. 610 of 2017 delivered on 27 th November, 2019)

Judgment

plaint dated September 20, 2022 1. The appellant instituted a suit Machakos CMCC 610 of 2017 against the respondents seeking:a.General damages for unlawful arrest, confinement and malicious prosecutionb.Special damages in the sum of Kshs 103,700,c.Interest on (a) and (b)d.cost of this suite.Any other and interest from the date of filing the suit.

2. The 1st defendant was/is an employee of the 2nd defendant which is a limited liability company registered under cap 486 of the Companies Act Laws of Kenya, the 3rd defendant is the hon attorney general of the Republic of Kenya.

3. The cause of action arose around on/or about December 8, 2015 when the 1st defendant who was an employee of the 2nd defendant and its manager laid, fabricated, false and malicious allegations to the police at Kyumbi police station that on the December 4, 2015 the plaintiff had stolen one motor vehicle tyre by virtue of his employment as a store keeper at the 2nd defendant’s place of business.

4. The appellant herein was arrested and arraigned before the Machakos Chief Magistrate’s Court on December 9, 2015 in Criminal case No 1751 of 2015 for the charges of stealing by servant contrary to section 281 of the Penal Code. The trial court that conducted the criminal trial (Ms IM Kahuya SRM) the accused person now plaintiff herein was acquitted on October 13, 2016 under section 210 of theCriminal procedure Codecap 75 laws of Kenya.

5. Particulars of malice by 1st defendant was that he deliberately gave false information to the police that the plaintiff stole the 2nd defendant’s property. The particulars of malice by 2nd defendant was to cause the plaintiff’s arrest and detention at the police station for an offence he did not commit. The particulars of malice ion the part of the 3rd defendant was failing to carry out proper investigations, refusing to terminate criminal proceedings against the plaintiff, failing to carry out its statutory mandate and deliberately causing the plaintiff to suffer hardship, damages, suffering and loss.

DEFENSE1st and 2nd defendant’s statement of defence 6. The 1st defendant denies the allegations that he laid false information to the police that he had reasons to believe that an offence had been committed and put the plaintiff to strict proof.

7. That the 2nd defendant stated that it did not cause, direct and procure the arrest of the plaintiff neither did it influence the decision of the police to arrest the plaintiff and put the plaintiff to strict proof on any allegations to the contrary. 3rd defendant’s statement of defence 8. The 3rd defendant denied all the allegations and stated that if at all the plaintiff was arrested; the same was done after a legitimate complaint was made to the Kenya police, proper investigations done and in execution of the police statutory duty.

Court proceedings 9. The plaintiff testified and called no witnesses, while the defendants did not tender any evidence.

Evidence 10. Pw1 –John Kagwamba Wachira told the court that the 1st defendant fabricated information to Kyumbi police station that the plaintiff had stolen a tyre from the 2nd defendant who was defendant’s employer. As a result, the plaintiff was arrested on December 13, 2015 and arraigned in Court on December 9, 2015 charged with the offence of stealing by servant. The case proceeded to hearing and eventually the plaintiff was acquitted under section 210 Criminal Procedure Code. He spent Kshs 80,500/- as legal fees. He prayed for general damages for unlawful arrest, confinement and malicious prosecution.

11. In cross examination by advocate Mr Ochieng for defendant he told the court that he was employed for 1½years as a storekeeper. His role was to receive and issue spare parts. He was charged on allegations of stealing a wheel. He used to store wheels. He was not a security officer. The 1st defendant had contracted Savannah security to offer security services. He found them there when he was being employed. It was a private company. He was not arrested but summoned to record a statement at police station. He was held overnight and later charged. The security company complained to project manager who referred case to police. Security company reported to police. 1st defendant was the project manager. He came to police station the next day.

12. In re-examination by Ms Nzilani he told the court that the 1st defendant was a witness in the criminal case.

13. In cross examination by Mr Emaha for the 3rd defendant he stated that the police have a duty to act upon report being made. That the police carried out investigation before arresting him.

14. In cross –examination by Kamanda for 1st and 2nd defendants he stated that the 1st defendant fabricated the report. That to his knowledge no tyre was stolen from the 1st defendant as the said tyre was found in the yard. That the said tyre was not under his supervisions.

15. In re-examination by Ms Nzilani for plaintiff he stated that the 1st defendant directed the security officers to report to police. That the said security officer never testified in the criminal case. That he was acquitted of the charges. That the defendant never appealed the Ruling.

Trial court judgment 16. Trial court delivered its ruling on November 27, 2019 and dismissed the plaintiff’s case. The trial court observed that the plaintiff testified and called no witness, while the defendants did not tender any evidence. The plaintiff failed to prove all the ingredients of malicious prosecution. Since, the employment relationship between the plaintiff and the 1st and 2nd defendants had already been terminated the court ordered that each party bear their own costs.

Memorandum of appeal 17. Aggrieved by the judgment delivered on November 27, 2019 by the trial court, the appellant appealed to this court citing the following grounds of appeal: -1. Thatthe learned trial magistrate erred in law and in fact in finding that there was no spite or ill will in the manner in which the criminal case against the appellant was conducted since the complainant had no evidence that the appellant had stolen a tyre form the store and as a result [he] was acquitted of the offence of stealing.2. Thatthe learned trial magistrate erred in law and in fact in finding that the prosecution was not actuated by malice even after the complainant Pw1 testified that the tyre was not found with the appellant and yet he prosecution still proceeded with the trial.3. Thatthe leaned trial magistrate erred in law and in fact in finding that information [given] to the police was not actuated with malice yet there was no evidence at all that the appellant bribed or compromised or even tried to sell the tyre as alleged by the 1st respondent.4. Thatthe learned trial magistrate erred in law and fact by upholding the disputed testimony of the investigation officer that the appellant had failed to exercise due diligence in ensuring that the stolen tyre did not leave the premises without proper authorization.5. Thatthe learned trial magistrate erred in law and fact by finding that the prosecution acted without an improper and wrongful motive as the four security guards who implicated the appellant were neither called as prosecution witnesses nor were they charged as co-accused persons in the criminal trial against the appellant.6. Thatthe learned trial magistrate erred in law and fact by failing to award costs to the appellant arising from the criminal trial proceedings.

18. The appellant prayed for this court to;a.Allow this appeal.b.Set aside the findings of the lower court.c.Costs of this appeal be borne by the respondent.d.Any other or further order this honourable court deem fit or just to grant.

Replying Affidavit Filed On 14ThMay, 2020 19. Pinchas Leweistein swore an affidavit deposing as follows;a.Thathe is employed by the 2nd respondent herein as the operations manager and well versed with the matter pertaining to the application herein.b.Thatthis affidavit is in response to the memorandum of appeal dated and filed on December 20, 2019. c.Thathe understood and had the content and the purport of the Appeal filed before Court explained to him by his advocates appearing on record.d.Thathe have been advised by their advocates on record that the appeal filed before this court is devoid of merit and should be dismissed herewith at first instance as it is a waste of the court’s time and limited resources.e.Thatthe Hon A. G. Kibiru chief magistrate applied the law based on the evidence presented by the appellant and found the claim to be devoid of merit and the same cannot be equated as an error on the face of the record.f.Thatthe appellant’s appeal is speculative and fails to point out the alleged errors in the judgment or wrong application of the law that the trial court employed in dismissing the appellant’s suit. Therefore, the appeal before this court is merely suggestive and tantamount to engaging this court in a fishing expedition.g.Thatin the trial court’s judgment it was determined that the required standard of balance of probabilities was not met. Equally the threshold for sustaining a malicious prosecution case was not met and the suit was subsequently dismissed and each party ordered to bear their own costs.h.Thatthe appellant herein was the storekeeper whose duty was to ensure that items from the store did not leave without proper authorization.i.Thatthe appellant was arrested on reasonable grounds of suspicion after the investigating officer in conduct of the matter carried out thorough investigations.j.Thatthe Investigating officer after conducting the investigations came to the conclusion that the appellant had failed to exercise due diligence in ensuring that the tyre did not leave the premises without proper authorization.k.Thaton the strength of that basis, the appellant was arrested and charges preferred against him and subsequently the matter proceeded with the motions of trial.l.Thatthat there being no evidence of malice adduced as against the prosecution, the 1st and 2nd Respondents, the appeal cannot stand and should be dismissed.m.Thatit is well established that is a discretionary function of the trial court to award the costs on a case by case basis.n.Thatthe trial court in exercising its discretion did not deem it fit to award costs to the appellant herein on the basis that the appellant, 1st and 2nd respondent had an employment – employee relationship that had been terminated.o.Thaton that basis, it is evident that the trial court failed to award costs in favour of the appellant not capriciously but in accordance to well established legal principles, i.e costs follow the event. In the circumstances costs should have been awarded to the respondents.p.Thatthe appellant in its appeal finds fault in the trial magistrate’s failure to award costs arising from the criminal trial proceedings in misguided and bad in law.q.Thatthe appellant appeal is bad in law and the justice of the matter is for the appeal to be dismissed for engaging this court in a mere academic exercise.

Submissions appellant’s Submissions 20. It was submitted that there was no ill spite or ill will in the manner in in which the criminal case was conducted since the complainant had no evidence that the appellant had stolen a tyre from the store and was acquitted of the offence.

21. The ruling of Hon. I. M. Kahuya delivered on October 13, 2016 as read in page 29 of the record states as follows: -“In conclusion, the reasons why the accused was involved in this case was that he was implicated by the security guards who neither testified as prosecution witnesses nor were charged as co-accused persons.”

22. That the in the absence of evidence directly linking the appellant to the offence he was charged with manifests collusion between the 1st and 2nd respondent and the prosecution to charge the appellant with the offence of stealing by servant.

23. In the case of Kioko Mwakavi Makali –vs- Attorney General & another [2019] eKLR Odunga J held that:“Therefore, the police are expected to be professional in the conduct of their investigations and ought not to be driven by malice or other collateral considerations. However, 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. I say ordinarily because the mere fact that the version of one of the parties is not considered does not make the subsequent prosecution malicious. 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. On the other hand, it would be obviously absurd to make a defendant liable because matters of which he was not aware put a different complexion upon facts, which in themselves appeared a good case for prosecution. But neglect to make reasonable use of the sources of information available before instituting proceedings would be evidence of want of reasonable and probable cause and also malice.

24. In the present appeal it remains alien and sinister as to why the appellant was arrested and charged since proper and/or intensive investigations would have exonerated the appellant from blame and that the arrest and prosecution of the appellant is that the same was actuated by malice.

25. It was finally submitted that the unlawful arrest and prosecution caused the appellant to incur costs in hiring legal services and incurring ancillary costs and incurring ancillary costs.

Respondent’s Submissions 1st and 2nd Respondent’s Submission dated May 10, 2022 26. It was submitted that in the ruling contrary to the plaintiff’s testimony it is clear that the prosecution presented 4 witnesses amongst them was PW – 1 the 2nd defendant, and in his testimony, he indicated that he was informed by a security officer that the accused person (the plaintiff) had attempted to bribe other employees so that the tyre theft was not reported to the management.

27. It is the submissions of the 1st and 2nd defendant that the security guards upon carrying out their internal investigation called police officers, who arrested the guards manning the premises, and later the guards implicated the accused person and was later arrested by the police following an investigation.

28. The plaintiff confirmed that it was the police who carried out investigations into the matter before and were the ones who finally arrested him as testified by PW4 who was theI.O, the plaintiff further indicated that contrary to his testimony he did not see the 1st and 2nd defendant testify interfere or control the investigation.

29. Further, the trial court in its judgment and upon analyzing the evidence tendered by the plaintiff stated as follows;“That the set of facts triggered the prosecution of the plaintiff, nowhere did the investigating officer or prosecutor is said to have acted maliciously, I have not seen any evidence that points to any form of malice in the actions of the investigating officer or the prosecutor”

30. The tort of malicious prosecution is meant to be the remedy for baseless and malicious litigation. It is not limited to criminal prosecutions but may be brought in response to any baseless and malicious litigation or prosecution, whether criminal or civil and is designed to provide redress for losses flowing from an unjustified prosecution.

31. Justice G.V. Odunga in the case of Dr Lucas Ndungu Munywa v Royal Media Services Limited & another (2014) eKLR when stating the law surrounding the tort of malicious prosecution he quoted the East Africa Court Appeal in the case ofMbowa vs. East Mengo District Administration (1972)EA 352, the court expressed itself as follows;“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 procedure, 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.....”

32. That the plaintiff failed to discharge his burden and failed to demonstrate that the prosecution acted without reasonable proper cause, or that the defendants conspired with the police officers to charge the plaintiff, no evidence was presented before this court that can guide the court to show that the police officers were impartial and or were conduits of the complainant.

33. On the element of malice, the 1st defendant in submission relies on the authority ofJames Karuga Kiiru – vs – Joseph Mwamburi and 3 others Nrb C.A No 171 of 2000 where it was held that;“to prosecute a person is not prima facie tortuous, but to do so dishonestly or unreasonably is the burden of proving that the prosecutor did not act honestly or reasonably lies on the person prosecuted. A prosecution can either be mounted based on an offence committed in the presence of law enforcement officers or by way of a complaint lodged by a person to the said officers or agencies. However, the mere fact that complaint is lodged does not justify the institution of a criminal prosecution. The law enforcement agencies are required 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...”

3rd Respondents Written Submissions dated March 2, 2022 34. In the issues of determination, it was submitted that the arrest and prosecution of the appellant was not actuated by malice. It was relied on the case of Kagane and others versus the Attorney General (1969) E.A 643 by RddJ as quoted inMichael Ochieng Odera v Attorney General(2012) eKLR. Where it lays down the following principles that are to be followed for malicious prosecution to be proved;a.The prosecution must have been instituted by a police officerb.The prosecution must have been terminated in the plaintiff’s favour.c.The prosecution was instated without reasonable and probable cause, the test for this condition is whether the material know 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 than a desire to vindicate justice.

35. On the 3rd principle, it was submitted before the court that there is no evidence that was adduced before court by the appellant to actuate malice, either by spite or ill-will or by indirect or improper motive. The 3rd respondent was of the position that the prosecution was not motivated by anything else other that a desire to vindicate justice. The argument was based on the case of Katerrega versus Attorney General (1973) E.A 289 as quoted in Philip Odari v Attorney General & 2 others(2015) eKLR where the court observed as follows;“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”

36. It was submitted that the police had good intentions and they were only performing their statutory duties which include amongst others; to receive and act upon information that an offence cognizable in law has been or is likely to be committed; to cause investigations to be undertaken and pursue every credible evidence upon reasonable cause; to apprehend and detain in custody suspected offenders, and to institute and undertake criminal proceedings against any person before any court in respect of offence alleged to be/have committed by that person.

37. With respect to malice, it was submitted that the mere fact that a person has been acquitted of the criminal charge under section 210 of the Criminal Procedure Code, does not necessarily connote malice of the part of the prosecutor. In Nzoia Sugar Company Ltd versus Fungututi (1988) KLR 399, 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”.

38. It was submitted that the information relayed to the police officers by the 1st and 2nd respondents, believing it to be credible, was enough to satisfy a prudent and cautious man that the appellant was liable. This is the reason why the appellant was arrested and prosecuted.

39. Whether the plaintiff was entitled to the costs arising from the criminal trials proceedings, it was submitted that it is the discretion of the court to make a findings as to quantum of damages payable to the appellants had they succeeded on their case. It is not mandatory for the court to make a finding on the same.

40. It is trite law that costs follow the event. In view of the fact that the trial court found that the appellant’s case had not been proved to the required standard of a balance of probabilities and dismissed the same, and that the employment relationship between the appellant and the 2nd respondent had already terminated, the learned trial magistrate did not error in law and fact by failing to award costs to the appellant arising from the criminal trial proceedings.

Determination 41. This court considered the pleadings, the trial courts’ records & submissions and the issues for determination are the contested legal findings in the appeal of the trial court judgment of November 27, 2019.

42. In the case ofSelle vs. Associated Motor Boat Co. [1968] EA 123 that at delved into the issue of court’s jurisdiction considered what entails an appeal as follows;“The appellate court is not bound necessarily to accept the findings of fact by the court below. An appeal to the Court of Appeal from a trial by the High Court is by way of a retrial and the principles upon which the Court of Appeal acts are that the court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular the court is not bound necessarily to follow the trial Judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanour of a witness is inconsistent with the evidence in the case generally.”

43. This court in a 1st appeal is dutybound to reevaluate all the evidence on record and arrive at its own conclusion. This was observed in the case of in the case of Peters –vs- Sunday Post Limited [1958] EA 424 where it was held that:“Apart from the classes of case in which the powers of the Court of Appeal are limited to deciding a question of law an appellate court has jurisdiction to review the record of the evidence in order to determine whether the conclusion originally reached upon that evidence should stand; but this jurisdiction has to be exercised with caution. If there is no evidence to support particular conclusion (and this really is a question of law) the appellate court will not hesitate so to decide. But if the evidence as a whole can reasonably be regarded as justifying the conclusion arrived at on conflicting testimony by a tribunal which saw and heard the witnesses, the appellate court will bear in mind that it has not enjoyed this opportunity and that the view of the trial Judge as to where credibility lies is entitled to great weight. …….”

44. In a civil matter, the court considers liability whether the cause of action pleaded is proved to the required legal standard on a balance of probability and who has/are held liable for the action commission and/or conduct.

45. In the instant appeal, this court is to consider and reevaluate the evidence on record of the trial court analyze and arrive to its own independent conclusion. Of course, considering this court did not see and/or hear the direct evidence and consider the demeanor of witnesses.

46. The appeal is based on 2 pronged cases; the criminal trial in Criminal Case 1751 of 2015 that culminated to the civil claim outlined in Civil Suit 171 of 2019. In a nutshell, the appellant took issue with the trial court’s findings as follows;1. finding that there was no spite or ill will in the manner in which the criminal case against the appellant was conducted2. finding that the prosecution was not actuated by malice even after the complainant Pw1 testified that the tyre was not found with the appellant3. finding that the prosecution acted without an improper and wrongful motive as the four security guards who implicated the appellant were neither called as prosecution witnesses nor were they charged as co-accused persons in the criminal trial4. failing to award costs to the appellant arising from the criminal trial proceedings.

47. In the case of Anne Wambui Nderitu vs Joseph Kiprono Ropkoi & AnorCivil Appeal 335 of 2000 Nyeri [2005] 1EA 334, The Court of Appeal found;“As a general proposition the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue. That is the purport of section 107 (1) of the Evidence Act cap 80, which provides:107. (1)“Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.”There is however the evidential burden that is cast upon any party the burden of proving any particular fact which he desires the court to believe in its existence. That is captured in sections 109 and 112 of the Act, thus:109. The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.112. In civil proceedings, when any fact is especially within the knowledge of any party to those proceedings, the burden of proving or disproving that fact is upon him.”The two sections carry forward the often-repeated evidential adage: “he who asserts must prove”.““Denning J. in MillervsMinister of Pensions (1947) 2 ALL ER 372 on the burden of proof stated;““That degree is well settled. It must carry a reasonable degree of probability, but not so high as is required in a criminal case. If the evidence is such that the tribunal can say; we think it more probable than not; the burden is discharged, but if the probability are equal it is not. This burden on a balance of preponderance of probabilities means a win, however narrow. A draw is not enough. So in any case in which a tribunal cannot decide one way or the other which evidence to accept, where both parties…are equally (un)convincing, the party bearing the burden of proof will lose, because the requisite standard will not have been attained.”

48. In the case of Kioko Mwakavi Makali vs AG & Anor [2019] eKLR G.V.Odunga J (as he then was) referred to East Africa Court Appeal in the case of Mbowa vs. East Mengo District Administration(1972)EA 352, that stated the essential requirements for the tort of malicious prosecution which need to be proved are;(1)the criminal proceedings must have been instituted by the defendant, that is, he was instrumental in setting the law in motion against the plaintiff and it suffices if he lays an information before a judicial authority who then issues a warrant for the arrest of the plaintiff or a person arrests 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 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 favor, 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.

49. Rudd, J in Kagane vs. Attorney General(1969) EA 643, set the test for reasonable and probable cause.“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………’’

50. In the instant appeal, The appellant attributed malice by investigation officer who failed to call the security guards as prosecution witness or charging them alongside the appellant. Secondly, the ‘stolen’ tyre was not found in /with the appellant and the prosecution proceeded with the trial against him. Thirdly, there was no evidence adduced that the accused person/plaintiff bribed or compromised or even tried to sell the tyre. The appellant took the view that the trial court upheld the disputed evidence by the investigation officer that the appellant failed to exercise due diligence in ensuring that the tyre was not stolen and/or left the premises without proper authorization.

51. The 1st & 2nd defendants submitted at length on the criminal trial evidence on record particularly the evidence of the investigation officer and the finding by the trial court and therefore accordingly, the plaintiff could not attribute the arrest confinement and prosecution as being malicious.

52. The 3rd defendant submitted that the Police in good intention performed their statutory duties which include receive and act upon information that an offence cognizable in law has been or is likely to be committed, undertake investigations and pursue credible evidence, apprehend and detain in custody suspected offenders and institute and undertake criminal proceedings against any person before any court of law in respect of the offence alleged to have been committed.

53. It is on record that a complaint was made to the police on 4/12/2015. Upon receipt of the complaint, police conducted investigations to ascertain whether it was baseless or not. It is upon concluding that the appellant was liable that the police arrested and prosecuted the appellant on 9/12/2015.

Criminal Proceedings 54. PW1 Alexander Gonduch, Manager of Renault Construction Company testified that on December 4, 2015 he was called by security manager of the company that one of the tractors was missing a tyre and the accused Mr Wachira was trying to bribe them so as not to report the matter. He advised him to report the matter to the police. He later recorded a statement and the accused was arrested. The accused was alleged to be have trying to sell the tyre. PW1 further stated that the accused was trying to sell off the said tyre but got arrested before succeeding.

55. PW2, Reuben Macharia, supervisor at Savannah security company, he got a call from operation manager MrMike who asked him to go to the site and avail the checklist of the guards. He went to the site and found Mike and Njoroge. He was informed that a tyre was stolen. They looked for the tyre and it was found in a scrap metal vehicle. He guarded it as the matter was reported to police. The guards were arrested. Later, after interrogation, the store keeper was implicated. PW2 further stated that one Rop led them to where the tyre was found and there was CCTV that confirmed were there. The serial number of the tyre was known and confirmed.

56. PW3, Michael Ochule, Manager of Savannah security company, received a report from Renault construction company that the store-man had stolen and hidden the tyre. He contacted Pw1 who told him to report the matter to the police. When he came to the scene he found Pw2 and found the tyre hidden in a scrap motor vehicle. They contacted the police. The tyres were kept in the store and his employees had no access to the store. It is the store keeper who had access.PW3 refused to disclose who tipped him off with the information about the theft of the tyre and where it was.

57. PW4 PC Mose of Kyumbi police station who visited scene along Mombasa Road. He arrested 4 security officers in relation to the offence, 3 of them were dismissed by their employer and he could not trace them to record statements. The accused worked under one Boaz who refused to record a statement. Upon investigations he found the accused person being the store keeper liable for the offence.

58. The trial court found;the reason why the Accused was involved in this case was because he was implicated by the security guards who neither testified as prosecution witness nor were charged as co -accused persons. Without this link, the prosecution case must fail……….

59. The prosecution was instituted by the prosecution after a report was made to the police by PW2 & PW3 of theft of a tyre and who arrived to the scene and interrogated the personnel and took the recovered tyre and arrested the 4 security officers. These security officers told on the accused person and they were released. They fled and did not record statements or testify against the accused person.

60. In the instant case, although the prosecution of the appellant was instituted by the police /prosecution and he sued through the AGthe 3rd defendant, the arrest was found investigations and it was on the basis of report made to them as Law Enforcement Institution with a legal mandate as provided by law to maintain law and order.

61. Section 21, 22,25 & 29 of Criminal Procedure Code provides for searches and arrest by police officer(s). Section 24 ofKenya Police Service provides for investigations to be carried out in criminal matters by the police and prosecution of cases is provided by section 42 of Criminal Procedure Code. Therefore, The Police upon receipt of the report went to the scene and interrogated the witnesses and 2nd defendant’s security guards were arrested. PW4 carried out the legal mandate after he was allocated the case to investigate. The security guards implicated the appellant and on release they fled without trace.

62. The appellant attributed malice by investigation officer who failed to call the security guards as prosecution witness or charging them alongside the appellant. PW4 explained in cross-examination during the criminal trial that he arrested 4 security officers in relation to the offence, 3 of them were dismissed by their employer and he could not trace them to record statements.

63. Secondly, the ‘stolen’ tyre was not found in /with the appellant and the prosecution proceeded with the Trial against him. The tyre was recovered in the presence of PW2 & PW3; PW3 connected the theft of the tyre to the accused person/appellant as he received information from an Informer whom he refused to disclose.

64. The report and arrest of the accused person/appellant of 5/12/2015 was not without any reasonable and probable cause of lawful justification as a report was made of an offence that was committed and the report was made by PW2 & PW3 to the police. The police came to the scene after the report and consequently, had no ill motive or malice but were in the course of carrying out their legal mandate /statutory duty after receipt of the report.

65. The appellant imputed malicious conduct by the 3rd defendant by lack of proper investigations and malicious prosecution as no evidence was adduced that the Accused person/plaintiff bribed or compromised or even tried to sell the tyre. The investigation officer ‘s view that the appellant failed to exercise due diligence in ensuring that the tyre was not stolen and/or left the premises without proper authorization was not proved by evidence.

66. PW1, PW2 & PW3 made reports to the Police from the information derived from the informer and security personnel who did not testify in court. The alleged CCTV was not produced in court. For these reasons I find no evidence of lack of proper investigations as PW4 received report and information but the sources refused to record statements and to be identified. I find no legal basis for malicious prosecution attributed to the 3rd defendant.

67. On the ground that 1st defendant gave fabricated evidence by reporting to the police the theft of the tyre and caused the appellant to be arrested, The criminal proceedings disclose PW1 was called by the security manager of the company and was informed that one of the tractors was missing a tyre and the appellant was trying to bribe them so as not to report the matter. He advised the security guard Michael to report the matter to police. Clearly, the report was not from but to PW1 by security personnel on the theft of the tyre and he asked the report be made to police. The appellant failed to prove the allegation against 1st defendant of laying false information to the police of the appellant stealing the tyre.

68. On the ground that the 2nd defendant company caused the plaintiff to be arrested and detained at the police station for an offence he did not commit, the 2nd defendant is a liability company and cannot act by and of itself except through the board of directors and/or management. In this instant 1st defendant is also Manager of Reynold construction company and therefore if the claim against him is not proved to the required standard by the evidence on record , similarly, the 2nd defendant cannot be liable without any other conduct or omission by the 2nd defendant through its directors or officers.

69. As elucidated in Kioko Mwakavi Makali vs AG& Anor supraOn what constitutes malicious prosecution; the criminal proceedings were commenced by the Prosecution arising from a report made of theft of a tyre at the 2nd defendant’s premises. The report was by Pw2 & Pw3, investigations were launched after 4 security guards were arrested, they implicated the appellant and were released and fled. From these facts the proof of the fact that defendants acted maliciously with an improper and wrongful motive, in instituting unlawful arrest and the criminal proceedings has not been proved by the appellant. It is confirmed that the prosecution terminated in the plaintiff’s favor.

70. In the case of Kagane vs. Attorney Generalsupra it held;“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………………..

71. The report, investigations and evidence by PW1 Pw2 Pw3 Pw4 as outlined above and security guards who implicated the accused person/appellant discloses honest belief in the commission of the offence by the appellant until the security guards backtracked and fled upon release.

72. The evaluation of the evidence on record and the pleadings by parties and submissions and particularly the 2 decisions by the trial courts; Criminal Case No 1751 of 2015 ruling of November 27, 2019 & Machakos CMCC Civil Suit No 610 of 2017 judgment delivered on November 27, 2019, the civil case judgment subject of the appeal and find that the plaintiff may have been unfairly implicated by the security guards from the security firm hired by the 1st defendant but the evidence does not establish malicious prosecution by the defendants as the component of malice, ill will, spite and/or ill motive have not been established.

73. Costs follow the event in civil proceedings.

74. This court finds the appeal without merit.

75. It is dismissed with costs to the defendants.

DELIVERED SIGNED & DATED IN OPEN COURT IN MACHAKOS ON 6TH OCTOBER 2022. (VIRTUAL/PHYSICAL PROCEEDINGS)M.W. MUIGAIJUDGE