REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CIVIL SUIT NO. 168 OF 2011

LAWRENCE ONYANGO ODUORI.......................................PLAINTIFF

VERSUS

THE ATTONERY GENERAL......................................1ST DEFENDANT

KENYA COMMERCIAL BANK................................2ND DEFENDANT

JUDGMENT

Background:

The plaintiff’s claim is for damages for unlawful arrest, false imprisonment and malicious prosecution. The facts of the case are that on 6^th April, 2008, the plaintiff was arrested by the Deputy OCS Kileleshwa Police Station while visiting a colleague, Rosabella Achanga Sogoh, who had been arrested and was being held at the Kileleshwa Police Station. He was then arraigned in court on 7^th April, 2008 on a charge of stealing by servant contrary to Section 281 of the Penal Code at the Nairobi Chief Magistrate’s Court in Criminal Case No. 461 of 2008.

The plaintiff claims that he was unlawfully detained, falsely charged and maliciously prosecuted with the said offence without any reasonable or probable cause.  He claims that the arrest and detention was unlawful as there was no investigation conducted. In his plaint dated 6^th May, 2011, he claimed for:-

(a) General damages for wrongful arrest and detention,

(b) General damages for false imprisonment,

(c) General damages for malicious prosecution,

(d) General damages for loss of comfort of family and marital bliss,

(e) Special damages for costs incurred in defending Criminal Case No. 461 of 2008 amounting to Kshs. 3,200/=,

(f) Medical expenses incurred in treating ailments contracted as a result of incarceration amounting to Kshs. 15,000/= and future medical expenses.

(g) Costs of this suit.

The claim was defended by the 1st and 2nd defendants in statements of defense dated 19th August, 2011 and 21st July, 2011, respectively. The 1st defendant claimed that the plaintiff was involved in the crime for which he was charged, whereas the 2nd defendant claimed that the decision to arrest and charge the plaintiff was solely made by the police in response to Rosabella Achanga Sogoh's allegations. The 2^nd defendant admits that the plaintiff was its employee but denies any involvement in his arrest or prosecution. According to the 2nd Defendant, the plaintiff was arrested on suspicion of being an accomplice of Rosabella Achanga Sogoh, who confessed to stealing from the bank.

Plaintiff’s Case;

On 7^th July, 2021, the plaintiff testified as PW1 and stated that on 7^th April, 2008, while working for the 2^nd defendant, he went to see a colleague, Rosabella Achanga Sogoh, who had been arrested and was being held at Kileleshwa Police Station. He further testified that at the police station, he met the Deputy OCS, who joked that if he didn't bring the money allegedly stolen, he was going to be arrested as well. True to his word, the OCS ordered him to take off his shoes and placed him in a cell. The plaintiff stated that he was later charged in Criminal Case No. 461 of 2008 and was transferred to the Industrial Area Prison. It is his testimony that he was held at the Industrial Area Prison until July, 2008 when his bond was reduced to Kshs. 100,000 from Kshs. 200,000. The plaintiff further testified that the charges against him were withdrawn under Section 87 (a) of the Criminal Procedure Code in December,2008.  It is the plaintiff case that as a result of the unlawful arrest, false imprisonment and malicious prosecution, he not only lost his job but he also lost his family, his home at Shauri Moyo Estate and he contracted a disease which he is still undergoing treatment.

During cross-examination, the plaintiff vehemently denied being an accomplice and stated that he only visited Rosebella out of concern. He further testified that he was not aware of the statement that implicated him as he was never questioned by defendants and/or their agents. The plaintiff confirmed that the terms of his Collective Bargaining Agreement with the bank stipulated that his employment would be terminated in the event he was arrested or charged in court.

Plaintiff’s Submissions;

In his court submissions, the plaintiff claims that he has met the requirements for a claim of illegal arrest and false imprisonment against the defendants, and thus the court should enter judgment in his favor. It is his submission that his arrest and detainment by the 1^st defendant’s agents was without reasonable and probable cause. The plaintiff further submits that simply mentioning a suspect negatively is not enough to warrant an arrest; instead, the police must first form an independent opinion based on investigations. The plaintiff has referred to the case of JAMES KAHINDI SIMBA v. DIRECTOR OF PUBLIC PROSECUTION & 2 OTHERS [2020] eKLR where the court held that;

“A person who arrests a suspect must have sufficient information justifying the arrest of the suspect. The arresting officer is also under a duty to ensure that prior to effecting an arrest on a suspect, he has verified the information or reports he has. The information that he relies on must be sufficient so as to cause a reasonable person to believe that an offence was committed. If he does not properly employ his mind and the report turns out to be false, the arrest becomes unlawful.

A police officer must have an independent opinion of the matter before he arrests and detains a suspect.  This makes it unacceptable for a police officer to arrest a suspect in order to conduct an investigation on the matter.  He should only effect an arrest where he has reasonable suspicion as regards the commission of an offence.  The police are also entitled to arrest and briefly detain a suspect if they suspect that he has committed a crime.  The detention may also become unlawful where the suspect is kept in custody for an unreasonable period of time or where force is resorted to during the detention.”   

It is the plaintiff’s further submission that DW2 Juma Amimo Tom, made the complaint at the Kileleshwa Police Station which set in motion the arrest of the plaintiff in relation to the theft of the funds therefore, the 2^nd defendant should not feign ignorance of his arrest. The plaintiff mantains that the charge sheet clearly indicates that the complainant was ‘Juma Amimo for KCB’ and further that the Deputy OCS while making the arrest confirmed that he was acting on the 2^nd defendant’s instructions.  He cited the case of UGANDA COMMERCIAL BANK V KIGOZI (2002) 1 EA 305, where the court held that an employer is liable for the negligence of a person delegated or employed by him in the performance of a task.

On the claim of malicious prosecution, the plaintiff submits that he has met all the essential elements for the claim of malicious prosecution. He has made reference to the elements set out in BULLEN AND LEAKE AND JACOB’S PRECEDENTS OF PLEADINGS, 14^th Edition paragraph 2-5 which include;

i. The plaintiff to show that he was prosecuted by the defendant, i.e that proceedings on a criminal charge were instituted or continued by the defendant against him

ii. The proceedings were terminated in the claimant’s favour

iii. The proceedings were instituted without unreasonable and probable cause

iv. The defendant instituted the proceedings maliciously; and

v. The claimant suffered loss and damage as a result.

The plaintiff also relies on the case of STEPHEN GACHAU GITHAIGA & ANOTHER V ATTORNEY GENERAL [2015] eKLR where Justice Mativo discussed the tort of malicious prosecution and stated;

“Malicious prosecution is an intentional tort designed to provide redress for losses flowing from an unjustified prosecution. Under the first element of the test for malicious prosecution, the plaintiff must prove that the prosecution at issue was initiated by the defendant. This element identifies the proper target of the suit, as it is only those who were actively instrumental in setting the law in motion that may be held accountable for any dam age that results.

The second element of the tort demands evidence that the prosecution terminated in the plaintiff’s favour. This requirement precludes a collateral attack on a conviction properly rendered by a criminal court, and thus avoids conflict between civil and criminal justice. The favourable termination requirement may be satisfied no matter the route by which the proceedings conclude in the plaintiff’s favour, whether it be an acquittal, a discharge at a preliminary hearing, a withdrawal, or a stay.

The third element which must be proven by a plaintiff — absence of reasonable and probable cause to commence or continue the prosecution — further delineates the scope of potential plaintiffs. As a matter of policy, if reasonable and probable cause existed at the time the prosecutor commenced or continued the criminal proceeding in question, the proceeding must be taken to have been properly instituted, regardless of the fact that it ultimately terminated in favour of the accused.

Finally, the initiation of criminal proceedings in the absence of reasonable and probable grounds does not itself suffice to ground a plaintiff’s case for malicious prosecution, regardless of whether the defendant is a private or public actor. 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.”

It is the plaintiff’s further submission that his arrest, detention and arraignment on allegation of being an accomplice fails the reasonable and probable cause test and constitutes malice set out In KAGAME & OTHERS VS THE ATTORNEY GENERAL (1969) E.A 643.  He further submits that his arrest was without reasonable and probable cause as the police failed to make independent investigations into the allegations reported by the 2^nd defendant before preferring the charges. Reliance has been placed on the case of STANDARD CHARTERED BANK KENYA LTD VS INTERCOM SERVICES LTD AND 5 OTHERS CIVIL APPEAL NO. 37 OF 2003 PAGE 46 as cited by Koome J. in the case of EMILY NDUTA KIREGI VS MONICA MUTHONI KANYORA [2007] eKLR where the Court of Appeal held that a complainant is not liable for the tort of malicious prosecution unless after independent investigations, the police find that the report was false and malicious.

The plaintiff prays for an award of Kshs. 1,000,000 as compensation for unlawful arrest and false imprisonment and has relied on the case of THOMAS MBOYA OLUOCH & ANOTHER V LUCY MUTHONI STEPHEN & ANOTHER [2005] eKLR, where the court while considering an imprisonment period of 28 days awarded the plaintiff Kshs. 500,000 for false imprisonment in 2005. Relying on the case of ANTONY MURIMI WAIGWE V ATTORNEY GENERAL & 4 OTHERS [2020] eKLR where the court awarded the plaintiff, a supermarket attendant, who was arrested and prosecuted and waited for 23 months for hearing of his case which never took place. A global sum of Kshs. 4,500,000 as general damages for loss of his employment and reputation was awarded.  The plaintiff proposed the same amount as compensation for his loss resulting from malicious prosecution.

The plaintiff has also proposed a sum of Kshs. 2,000,000 for exemplary, aggravated and punitive damages so as to discourage the defendants from abuse of power and ease the plaintiff’s hardship and sufferings. He has relied on the case of BRUTUS NANDWA WA AMBUNYA VS INSPECTOR GENERAL OF POLICE & ANOTHER [2018] eKLR where the plaintiff was awarded Kshs. 1,500,000 in exemplary, aggravated and punitive damages. In the alternative, the plaintiff prays for a global sum of Kshs. 7,500,000 as general and punitive damages for unlawful arrest, detention and malicious prosecution. The plaintiff also claims special damages of Kshs. 3,200 on account of certified copies of the proceedings in Criminal Case No. 461 of 2008 and Kshs. 15,700 for medical expenses.

1^st Defendant Case;

For the 1^st defendant, Richard Koywer, testified as DW1. He sought to adopt his witness statement dated 25^th February, 20213 and produced the 1^st Defendant’s List and Bundle of Documents dated 25^th February, 2013 as 1^st defendant’s Exhibits. DW1 testified that on 3^rd April 2003 he was instructed to investigate a case of fraud from the 2^nd defendant’s Industrial Area Branch. According to the witness, Ms. Rosebella Sogoh testimony implicated the plaintiff as her accomplice who assisted her in removing the money from the 2^nd defendant’s premises. He further testified that the arrest was made on the instruction of the 2^nd Defendant through Juma Amimo, who was listed as a complainant on the charge sheet dated 7/04/2008. During cross-examination, DW1 confirmed that the statement by Rosebella Achenya dated 4/4/2008 does not mention and or implicate the plaintiff.

2^nd Defendant’s Submissions;

The 1^st defendant contends in its submissions that the plaintiff's failure to produce evidence of collusion between the complainant and the prosecutor in bringing up the prosecution demonstrates that the prosecution was not motivated by malice. The 1^st defendant admits that the plaintiff's prosecution was initiated by the police in their capacity as its agents. Further, it is submitted on behalf of the 1^st defendant that the plaintiff failed to prove that his prosecution was without reasonable and probable cause and reliance on his acquittal was not enough evidence. To this end the 1^st defendant has sought to rely on the case of ATTORNEY GENERAL & 2 OTHER V JOSPHAT MAINA KARUORO [2015] eKLR. 

The 1^st defendant further submits that the plaintiff is not entitled to damages as he has failed to prove that his prosecution was actuated by malice or that his prosecution was brought without reasonable or probable cause. According to the 1^st defendant, the plaintiff’s claim for damages should be dismissed as the consequence of losing his employment was based on his employment contract with the 2^nd defendant. Moreover, the 1^st defendant submits that having been brought after 12 months, the suit against it is time barred, as provided for under Section 3(1) and 3 (3) (a) of the Public Authorities Limitations Act, Cap 39. Lastly, the court was urged to dismiss the suit with costs to the 1^st defendant.

2^nd Defendant’s Case;

Juma Amimo Tom, DW2, testified on behalf of the 2^nd defendant and confirmed receiving information on allegation of fraudulent transactions at the Kenya Commercial Bank- Industrial Area Branch involving Rosebella Achenya, a clerk at the bank. That he interrogated the suspect in relation to some banker’s cheque that were issued without cover. When the suspect became emotional they reported the case to the Anti Banking Fraud Unit. Later, the suspect was taken to the Kileleshwa Police Station where she remained in custody over the weekend and was charged on Monday. Its DW2’s testimony that he was informed of the arrest of the plaintiff. However, he was not aware of the reasons for his arrest and subsequent charge. He further confirms that in his forensic report dated May 2008, he did mention the plaintiff. Since there was no evidence linking him to the fraud, he never interviewed him nor recommended any charge against him.

2^nd Defendant’s Submissions

In its submissions, the 2^nd defendant maintains that it did not make any report to the 1^st defendant against the plaintiff thus urges this court to dismiss the claim of unlawful arrest against it. The 2^nd Defendant contends that since the forensic report dated 28^th May, 2008 reveals no evidence as against the plaintiff, his arrested was solely based on the testimony of Ms. Sogoh that implicated him. To this end, the 2^nd defendant has relied on the case of ROBERT OKERI OMBEKA V CENTRAL BANK OF KENYA [2015] eKLR. The 2^nd defendant further states that the imprisonment of the plaintiff after being charged and failure to raise the bail amount does not constitute false imprisonment. To buttress this argument, the plaintiff has relied on the case of JACKSON MUTHUI MALIKI & ANOTHER V ATTORNEY GENERAL [2010] eKLR and the case of BOBBY MACHARIA V THE ATTORNEY GENERAL & 3 OTHERS [2018] eKLR.

On the claim of malicious prosecution, the 2^nd defendant maintains that the prosecution was initiated by the 1^st defendant following the statement by Ms. Rosabella Sogoh. It is the 2^nd defendant’s submission that since the ingredients of malicious prosecution must be conjunctively proved, this court ought to dismiss the plaintiff’s suit against it. The 2^nd defendant has cited the case of DANIEL NJUGUNA MUCHIRI V BARCLAYS BANK OF KENYA LTD & ANOTHER [2016] eKLR in support. The 2^nd defendant further contends that the decision of whether to prosecute or not lies with the 1^st defendant and or its agents and as such, the bank can’t be held liable for malicious prosecution. The 2^nd defendant has cited the case of JOSEPH WAMOTO KARANI V C. DORMAN LIMITED & ANOTHER [2018] eKLR where the court referred to the case of DOUGHLAS ODHIMBO APEL & ANOTHER V TELKOM KENYA LIMITED CIVIL APPEAL NO. 115 OF 2006 where the Court held;- .

“…The Plaintiffs were arrested and charged by the police. And the prosecution was undertaken by the Attorney-General 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.”

Analysis and Determination;

Having considered the evidence on record, the issue for determination is whether the tort of malicious prosecution, unlawful arrest and false imprisonment has been proven to the required standard. The tort of malicious prosecution is committed where there is no legal reason for instituting criminal proceedings. According to Odunga’s Digest on Civil Case Law and Procedure page 5276, the essential ingredients to prove malicious prosecution are as follows:

a) The criminal proceedings must have been instituted by the defendant.

b) The defendant must have acted without reasonable or probable cause.

c) The defendant must have acted maliciously.

d) The criminal proceedings must have been terminated in the plaintiff’s favor.

The plaintiff must satisfy all of the above elements of malicious prosecution in order to succeed in obtaining an award of damages against the defendants. In the present case, it is undisputed that the plaintiff was arrested, detained, and charged by the police acting as agents of the 1st defendant following an investigation of the circumstances of the case. Further, on 10^th December, 2008, the case against the plaintiff was withdrawn under Section 87 (a) of the Criminal Procedure Code and the court ordered that cash bail to be refunded.

The 2nd defendant admitted being aware of the plaintiff's arrest and detention, however, disputes filing a report against him. The 1^st defendant on their part argue that the decision to arrest, detain and charge the plaintiff was made following the testimony of Rosebella Sogoh who implicated him as an accomplice. The plaintiff has not supplied any evidence to show that his arrest, detention and charge was instigated by the 2^nd defendant hence the first principles fails. In GITAU VS EAST AFRICA POWER & LIGHTENING CO. LTD (1986) KLR 365, Schofield J held inter alia;-

“In order for a claim of malicious prosecution to succeed the plaintiff must not only show that he was prosecuted but that he was prosecuted upon the instigation of the defendants and that there existed malice and which malice he must prove.”

The plaintiff must also demonstrate that his prosecution was terminated in his favour. The criminal proceedings against the plaintiff was withdrawn under Section 87(a) of the Criminal Procedure Code. This has been held as not sufficient ground to prove malicious prosecution by the Court of Appeal in the case of ROBERT OKERI OMBEKA V CENTRAL BANK OF KENYA (2015) eKLR where it was held that; -

“29. Comparative judicial experience in other jurisdictions also shows an emerging legal principle that an acquittal or discharge in a criminal prosecution should not necessarily lead to a cause of action in malicious prosecution law suits. A malicious prosecution plaintiff cannot establish lack of probable cause based on having obtained in an earlier action an acquittal based on insufficiency of the evidence. Successfully defending a prosecution or a law suit does not establish that the suit was brought without probable cause.”

The next issue is whether the prosecution was done out of malice. In MARY KANINI MURIUKI VS THE DCIO IMENTI NORTH & THE HONOURABLE ATTORNEY GENERAL, MERU HIGH COURT CIVIL CASE NO. 28 OF 2018, this court stated that;-

“In a claim for malicious prosecution it is important that the court evaluate the evidence in the criminal trial so as to draw an inference as to whether the prosecution was based on the need to enforce criminal law or it was actuated by malice. Its not necessary to evaluate the entire evidence but the court has to find out the source of the complaint and what was the basis of the prosecution.”

DW1(Richard Koywer), a DCIO who was then at the Banking Fraud Unit, testified that the plaintiff was implicated as an accomplice during their interrogation of Rosebella Achanja Sogoh. During cross examination, DW1 confirmed that it was on the basis of information given that Deputy OCS Kileleshwa arrested the plaintiff and initiated criminal proceedings against him. According to the evidence presented in this court and admitted by the plaintiff, he was charged in court, given cash bail, which was later reviewed, and the prosecution withdrew the case against him under Section 87 (a). The criminal proceedings were conducted within the bounds of the law, and there is no evidence that the police or prosecutor acted dishonestly or unreasonably. The Court of Appeal in the case of JAMES KARUGA KIIRU V JOSEPH MWAMBURI & 2 OTHERS [2001] eKLR stated that; -

“(B) Malicious Prosecution. To prosecute a person is not prima facie tortious, but to do so dishonestly or unreasonably is. Malicious prosecution thus differs from wrongful arrest and detention, in that the onus of proving that the prosecutor did not act honestly or reasonably, lies on the person prosecuted.

In the present case, the appellant has not unfortunately discharged this onus as there is nothing to show that the prosecutor did not act honestly and reasonably.

It will be evident that we also think that there is no merit in the final and faintly argued submission that there was no reasonable and probable cause for the prosecution. 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.”

I have not seen evidence that shows malicious intent on the part of the 1st defendant from the proceedings. The prosecution acted in response to the information that it had received from the co accused during interrogation. There is no evidence before this court that shows the police had an improper motive for his arrest or what they would have gained by arresting the plaintiff or colluded with the complainant. As a result, a finding in favor of the plaintiff cannot be made because he has failed to establish the critical ingredient of malicious intent.

The next issue is whether the prosecution was initiated without reasonable and probable cause. The Black’s Law Dictionary (10^th Edition) defines ‘reasonable’ as; -

i) Fair, proper or moderate under the circumstances; sensible

ii) According to reason

“Probable Cause” on the other hand has been defined as;

“A reasonable ground to suspect that a person has committed or is committing a crime”

The term "reasonable and probable cause" was further defined in the case of GLINSK v MCLVER [1962] AC 726 by Lord Devlin, who held that;

“reasonable and probable cause means that there must be sufficient ground for thinking that the accused was probably guilty but not that the prosecutor necessarily believes in the probability of conviction…”

In KAGANE V ATTORNEY GENERAL, (1969) E.A. 643, Rudd J held at Page 645-646 that;-

“In order to succeed in the action for malicious prosecution the plaintiffs must prove four essential ingredients;

1) That the prosecution was instituted by King

2) That the prosecution terminated in the plaintiff’s favour.

3) The plaintiff must also prove that the prosecution was instituted without reasonable and probable cause. This is a matter which requires very careful consideration as regards two aspects; the first aspect being as to whether the evidential material on which the prosecution was based was such that a reasonable prudent and cautious man could have honestly believed that it was sufficiently credible and cogent to justify the institution of a prosecution; and the second aspect being the effect of the fact that the prosecution was instituted on the direction of a State Counsel in the Attorney-General’s Chambers.

4) The plaintiffs have further to prove that the prosecution was instituted with malice on the part of the prosecutor King. In this connection malice means that the prosecution was motivated by something more than a sincere desire to vindicate justice.

The Court went on to add that;-

“As regards malice and want of reasonable and probable cause, in the nature of things, a person who is actuated by malice may for that reason be likely to institute a prosecution without reasonable and probable cause. This possibility is provided for in law to some extent in a rather backhanded way by allowing want of reasonable and probable cause to be taken into consideration as being some evidence of malice, but the converse does not apply. There would be too much risk of injustice if the converse applied since a malicious person may yet have reasonable and probable cause for instituting a prosecution, and so malice is no evidence at all of absence of reasonable and probable cause and must be completely disregarded when considering the question as to whether there was reasonable and probable cause for the prosecution.

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.”

In Milimani Chief Magistrate’s Court Criminal Case No. 461 of 2008, the plaintiff was charged with stealing by servant in violation of Section 261 of the Penal Code, alongside Rosebella Achanja Sogoh. Following a report of an alleged fraudulent activity at the complainant’s Industrial Area Bank Branch, DW2, (Juma Amimo Tom) together with other officers were sent to investigate. Upon completion of their investigations, DW1 did a forensic investigation report no. 088/2008 which formed the basis of the charge as against Rosebella Achanja Sogoh. It was the DW2 evidence that the report did not implicate the plaintiff as an accomplice since there was no evidence linking him with the fraud at the bank.

With regard to false imprisonment, the constitution under Article 49(1)(f) provides that a person arrested shall be brought to a court of law within 24 hours. The detention of the plaintiff beyond the 24 hours if proved would indeed be a violation of his constitutional fundamental rights which would entitle him to general damages. In the Ugandan case of MUGWANYA PATRICK VS ATTORNEY GENERAL HIGH COURT CIVIL SUIT NO. 154 OF 2009 [2012] UGHC 293 the court stated that;

“The civil tort of false imprisonment consists of unlawful detention of the plaintiff for any length of time whereby he is deprived of his personal liberty. It must be total restraint….where an arrest is made on a valid warrant it is not false imprisonment; but where the warrant or imprisonment is proved to have been effected in bad faith then it is false imprisonment.”

The law on the tort of wrongful detention was set out by Maraga, J. (as he then was) JOHN NDETO KYALO -VS- KENYA TEA DEVELOPMENT AUTHORITY AND THE HON. ATTORNEY GENERAL [2005] eKLR at Paragraphs 4 and 5 where the learned Judge observed:

“Claims for false imprisonment (wrongful detention) and malicious prosecution are distinct causes of action, and even though the evidence that may be adduced by a Plaintiff may cover them both, the evidence must prove each of them distinctly, on a balance of probabilities;      

As regards a claim for false imprisonment (wrongful detention), the cause of action would arise on the last day of the period of the alleged imprisonment;

By dint of Section 3(1) of the Public Authorities Limitations of Actions Act, a claim for false imprisonment (wrongful detention) would be time barred as  against the Attorney General unless instituted within one year of the last day    of the period of the alleged imprisonment…”

According to the facts of this case, the plaintiff worked for the 1st defendant, who reported to the Anti Banking Fraud Unit a case of fraud involving one of its employees, Rosabella Sogoh. When the accused later implicated the plaintiff during her interrogation, the Deputy OCS Kileleshwa Police Station arrested him when he visited his colleague in police custody. The arrest was based on Rosabella's statement, and in my opinion, the arrest was not wrongful. The plaintiff was arrested on April 6, 2008, and was taken to court on April 7, 2008, indicating that his arraignment was well within 24 hours of his arrest.

 The 1^st defendant submitted on limitation of time under Section 3(1), (3) (a) of the Public Authorities Limitations. Section 3(1) of the Public Authorities Limitation Act, Chapter 39 Laws of Kenya states that;

"No proceedings founded on tort shall be brought against the Government after the end of twelve months from the date on which the cause of action accrued. "

The charges against the plaintiff were withdrawn under Section 87(a) of the Criminal Procedure Code on 10^th December, 2008 and the present suit was filed on 6^th May, 2011. In light of the above provisions, the plaintiff ought to have brought this claim within twelve (12) months of the withdrawal. The prolonged delay in filing suit within the time limit has not been explained, consequently, the plaintiff’s claim of malicious prosecution as against the 1^st defendant cannot be sustained in law and must be struck out as it is time barred.

The core structure of the plaintiff’s claim is that he was maliciously prosecuted.  The evidence in the criminal case and in this case does not make any inference that the prosecution was actuated by malice.  The main suspect mentioned the plaintiff as her accomplice.  Coincidentally, the plaintiff visited the suspect who was in police custody and was equally arrested.  The subsequent withdrawal of the case cannot be interpreted to mean that there was no reasonable or probable cause in the prosecution. DW2 was not the investigation officer in the criminal case.  His report could not have been taken as the only guide to the prosecution of the case.

In the case of GITAU –V- EAST AFRICAN POWER AND LIGHTING CO. LTD, (1986), Schofield J (as he then was) held inter alia:-

“In order for a claim of malicious prosecution to succeed the plaintiff must not only show that he was prosecuted but that he was prosecuted upon the instigation of the defendants and that there existed malice and which malice he must prove. In this instance the plaintiff failed to prove malice.”

Similarly in the case of NZOIA SUGAR COMPANY –V- FUNGUTUTU (1988) KLR, 399, the Court of Appeal, Apaloo JA (as he then was) observed as follows at page 404:-

“But in my opinion, the case of malicious prosecution must founder on the absence of proof of malice or ill-will. The only reason why the respondent claimed he was maliciously prosecuted, was because the prosecution terminated in his acquittal. As he put it in evidence:

“I was acquitted under section 210 of the Criminal Procedure Code and in view of this, I am claiming damages from the defendant company because since my acquittal, I have not been employed because I have been treated as a thief as a result of this case.”

It is trite learning that acquittal, per se, on a criminal case 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. The respondent gave no evidence from which it can be reasonably inferred that the Security Officer made this report to the police on account of hatred or spite that he had for him.”

Given the circumstances of the case, the prosecution had a reason to believe that the plaintiff was an accomplice to the offence of stealing by servant.  There is no evidence that the then OCS at Kileleshwa Police Station had the plaintiff prosecuted out of malice.  The reasonable or probable cause can be traced in the information received from Rosabella Sogoh during investigations.

In the end, this Court finds that there was no malice on the part of the defendants. Consequently, the plaintiff’s claim for damages lacks merit and is hereby dismissed. Since the plaintiff lost his employment, I do order that parties meet their own costs.

DATED AND SIGNED AT NAIROBI THIS 15^TH  DAY OF MARCH, 2022.

.............................

S. CHITEMBWE

JUDGE