Gitau V Attorney General  EKLR
|Civil Case 1511 of 1979||20 Dec 1982|
James Patrick Trainor
High Court at Nairobi (Milimani Law Courts)
Gitau v Attorney General
Gitau v Attorney General  eKLR
Gitau v Attorney General
High Court, at Nairobi December 20, 1982
Civil Case No 1511 of 1979
Tort – malicious prosecution - matters that a claimant should establish to prove malicious prosecution - onus of showing that the defendant had wrongfully set the law in motion against the claimant - meaning of “setting the law in motion” against a person.
Tort – false imprisonment - plaintiff arrested and detained by police officers without justification - plaintiff held incommunicado for 30 hours at police station - whether plaintiff entitled to general and exemplary damages - measure of damages.
Damages - general damages - exemplary damages - for false imprisonment - plaintiff wrongfully arrested and detained by police for 30 hours - measure of damages.
The plaintiff commenced proceedings against the Attorney General on behalf of the Police Department, for assault, battery, false imprisonment, and malicious prosecution.
The plaintiff had been arrested and charged with the offence of being drunk and disorderly to which he had pleaded not guilty and was admitted to bail.
When the case came up for trial, the learned magistrate dismissed the same without calling on the defence.
It was the plaintiff’s complaint that during the time he was in custody he had been mistreated and denied an opportunity to contact his father and that it was his wife who had traced him after making enquiries.
An alcohol test on the plaintiff had given a negative result. Evidence was however given by an inspector of police in charge of Ngong Police Station where the plaintiff had been held to the effect that when he came on duty he was briefed that the plaintiff had been arrested for being drunk and disorderly and being in charge of a motor car while under the influence of alcohol. He therefore ordered that plaintiff should be charged. He signed the charge sheet and he was satisfied that the plaintiff was properly charged.
1. 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.
2. 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 an action that involves the plaintiff in a criminal prosecution. Secondly, the person who sets the law in motion must have done so without reasonable or probable cause.
3. The officer in charge of the police station was the person who had set the law in motion in this case. However, the plaintiff had not established that the police officer was not acting out of a belief of what had been reported to him or that he had acted recklessly or indifferently as to whether there were genuine grounds for prosecuting the plaintiff.
4. The plaintiff had failed to discharge the onus of proving that the setting of the law in motion by the officer had been without reasonable or probable cause. His claim for malicious prosecution fails.
5. The behaviour of the two police officers who wrongfully assaulted, battered and falsely imprisoned the plaintiff was oppressive, arbitrary and unconstitutional.
6. For the false imprisonment, the plaintiff was entitled to Kshs 25,000 in damges and Kshs 10,000 as exemplary damages.
Claim for malicious prosecution dismissed
1. Rookes v Barnard  AC 1129;  1 All ER 367;  2 WLR 269
2. Cassell & Co v Broome  AC 1027;  2 WLR 645;  1 All ER 801; 116 SJ 199
No statutes referred.