1.The appellant sued the respondents for malicious prosecution seeking compensation arising therefrom. In his plaint, he pleaded that he was arrested at Nairobi Central Business District by police officers who took him to Central Police Station using the 2nd respondent’s motor vehicle. On the same night, he was transferred to Muthangari Polie Station and further to Ahero Police Station the following day.
2.From Ahero Police Station, he was taken to Kisumu Police Station on July 9, 2017 from where he was informed that he was being held for operating an illegal petroleum business which he had no idea about. He was shown documents inter alia a lease agreement and a Transnational Bank cheque book and ordered to append his signature on a piece of paper 30 times and to write a cheque book. After this, he was taken to Koru Police Station and later to court on July 10, 2017. Upon request by the prosecution, the appellant was detained in the cells until July 17, 2017 when he was formally charged and subsequently released on bond.
3.It was his case that the confinement in police cells subjected him to serious stomach complications, general body complications, weakness, ill health, anguish, stress and trauma. He further pleaded that he appeared in court severally until discharge when the prosecution admitted it had no evidence. He termed the entire prosecution capricious, unwarranted, false and malicious.
4.The respondents entered appearance and filed their separate statements of defence. The 1st respondent on his part denied the claim and averred that if the appellant was arrested and arraigned, the same was due to reasonable and probable offence.
5.On the 2nd respondent’s part, the claim was denied and contended that the charges preferred against the appellant were lawful and made after investigations showed that the appellant had engaged in siphoning petroleum products leading to massive spillage. That this was informed by the fact that his identity card had been found at the scene. That the police acted within the powers bestowed by the law.
6.In the ensuing testimony before the trial court, the appellant testified as PW-1 stating that he was arrested by 4 police officers while travelling to Mombasa. That he was ferried by a motor vehicle belonging to the 2nd respondent to Central Police Station and later to various police stations. He denied engaging in oil business or operating a bank account at transnational bank. That as a result of the arrest, he developed typhoid and H-pylori due to drinking dirty water while incarcerated. He blamed the police for arresting him before investigations had been done.
7.Wilkinson Kithinji Gitwiga, the 2nd respondent’s senior security officer testified as DW-1 stating that on June 26, 2016, one Grace Akinyi, a resident of Koru was awakened by smell of petroleum products. She went out and found her house surrounded by leaked petroleum products leaking from a nearby petrol station owned by one Polycarp Ochola who had leased to the appellant. Upon investigations, an illegal connection was discovered on a line carrying diesel to Kisumu. The police launched investigations which led to the appellant’s arrest on the basis of a lease agreement he had allegedly entered into with the owner of the petrol station. The appellant’s identity card was used in executing the lease and opening the bank account.
8.The learned trial magistrate considered the evidence and dismissed the appellants claim thus this appeal in which the appellant raises the following grounds of appeal:a.The learned trial magistrate erred in law and fact by holding that a discharge of the appellant under Section 87(a) of the Criminal Procedure Code was not a justification to pursue a claim of malicious prosecution against the respondents.b.The learned trial magistrate erred in law and fact by holding that it was lawful for the police to arrest the appellant, arraign and charge him in court with a criminal offence and thereafter commence investigations into the offence.c.That the learned magistrate erred in law and fact by speculating on how the police conducted investigations into the arrest of the appellant when no evidence to support such conclusions form the court was led by the 1st respondent.d.The learned trial magistrate erred in law and fact by generally misapprehending the principles surrounding the tort of malicious prosecution.
9.By directions of the court, the appeal was disposed of by way of written submissions. Both parties filed their submissions.
10.For the appellant it was submitted that the 2nd defendant set the law in motion, acted without reasonable and or probable cause and finally that the criminal prosecution was instituted maliciously. That the piece of evidence linking the appellant to the offence was the identity card which he claimed had gotten lost and the loss was reported at Buru Buru Police Station, Nairobi.
11.That the respondents failed to appreciate that at the time of the offence, he was in Nairobi and not at the scene of crime. It was further submitted that the 2nd respondent took an active role in the investigations and failed to adduce reasons before the court why it discontinued the criminal prosecution.
12.It was further submitted that Kshs 800,000/- is sufficient exemplary damages and Kshs 2,000,000/- general damages.
13.The appellant cited the following cases: Mbowa v East Mengo District Administration  EA 352, Brutus Nandwa Wa Ambunya v Inspector General of Police & another eKLR, Gitau v Attorney General  KLR 13, Kagane & others v A G & another EA 643 and K L v Standard Limited  eKLR.
14.The 1st respondent on his part submitted on the 1st ground of appeal that for one to succeed in an action based on malicious prosecution, he has to establish the grounds set out in Kagane & others (supra) and that an acquittal is not enough to prove the claim.
16.On the 2nd ground of appeal, it was submitted that the police have powers under Section 58 of the National Police Service Act, 2011 and Section 75 of the Criminal Procedure Code to make arrest without any order or warrant. That the appellant’s arrest was informed by the use of his identification card in leasing the petrol station. Further, that the police officers were not aware that his identity card had been stolen.
17.The 2nd respondent submitted on the issue of whether criminal proceedings had been instituted by the 2nd respondent, that the decision to arrest and prosecute the appellant was made by the police officers and the director of public prosecutions of which the 2nd respondent is neither of the two entities. That there was no malice on the 2nd respondent’s part.
18.On whether the respondents acted without reasonable and or probable cause, the 2nd respondent relied on the cases of James Karuga Kirru v Joseph Mwamburi & 3 others (2001) eKLR and Simba v Wambani (supra) for the proposition that the appellant failed to show that in reporting the incident to the police, it was actuated by malice.
19.On the issue of whether the 2nd respondent acted maliciously, it was argued that the appellant failed to show how the court process was abused and how his rights were undermined by the arrest. That there was no proof that his trial was not fair. In support of this position, the cases of James Karuga (supra) and Joseph C Mumo v Attorney General & Another eKLR were cited.
Analysis and determination
21.The parties’ respective cases in the trial court is as summarized in the preceding paragraphs. In considering this appeal, I have paid attention to the evidence adduced by both parties and submissions from the trial court, the grounds of appeal and the rival submissions filed herein, for and against the appeal.
22.My duty therefore is to ascertain whether from the available evidence, the appellant adduced sufficient evidence to warrant the entry of judgement in his favour. It is common ground that his claim was dismissed for want of proof.
23.The tort of malicious prosecution as an actionable tort was summarized in Mbowa v East Mengo District Administration  EA 352, where it was stated:
24.The above case went further to establish the essential ingredients that one has to establish in order to succeed in such a claim as follows:b.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;c.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; andd.The criminal proceedings must have been terminated in the plaintiff’s favour, that is, the plaintiff must show that the proceedings were brought to a legal end and that he has been acquitted of the charge…
25.These pre-requisites have been restated in several cases following this decision for example in Stephen Gachau Githaiga & Another v Attorney General  eKLR, Mativo J gave the following conditions to be met by the claimant in a claim for malicious prosecution:
26.Applying the above settled principles, in disposing of this appeal, I will deal with the elements afore stated in that order.
27.The first is that the process was instituted by the defendant, in this case the respondents. This is not in controversy here. The genesis of the appellant’s arrest is a complaint lodged by the 2nd respondent upon receiving a report from a resident of Koru One Grace who complained on smell of petroleum products on June 16, 2016. A report DExh 1 was produced detailing the steps taken by the company to the time of lodging a report with the police officers. Their investigations at the Kenya Power and Lighting Company showed the owner of the premises from where the spillage was reported as one Polycarp who had leased it to the appellant thus the arrest and his prosecution.
28.It is these set of facts that informed the arrest and the subsequent prosecution of the appellant. Obviously, the 2nd respondent would need the help of the National Police Service to conduct proper and conclusive investigations and determine whether it had gathered enough evidence to charge.
29.The report further details that upon further investigations, it was found out that the appellant’s national identity card had been stolen and used by another person to further his criminal enterprise thus the withdrawal of the criminal charges against him.
30.The second element is that the defendant must have acted without reasonable or probable cause. The definition of reasonable and probable cause was given in the Kagane Case (supra) where it was held that:
31.Having stated earlier that the report as made to the police officers emanated from a lease agreement where the appellant’s identity card had been used was availed, I find that there was evidence from Kenya Power and Lighting company and the bank as well as the advocate who drafted the lease agreement which all showed that the appellant had allegedly leased the premises from which the fuel product was siphoned illegally. At that time, there was no evidence that the appellant’s identity card had been stolen.
32.The evidence on record, all pointed to the appellant as a possible suspect. No evidence was availed to the contrary to sway the mind of the investigator so that it can be said that he acted without evidence and or ignored material evidence which would exonerate the appellant or that he acted with malice.
33.The third element is that the defendant must have acted maliciously in that he must have acted, in instituting criminal charges against the appellant herein, with an improper and wrongful motive.
34.From the available evidence, the charges were instigated after investigations showed massive spillage of petroleum products which led to huge losses. Initial investigations showed that the appellant allegedly owned the premises. The respondents therefore intended to punish the wrong-doer and curtail the occurrence of such conduct in future.
35.To succeed in this limb, the appellant was duty bound to show that the respondents and the police officers had some other motive other than to prevent the commission of a crime. Having perused the evidence and the legal underpinnings on the subject, I do not find evidence of such motive on the respondent’s part.
36.The fourth element is that the prosecution terminated in the claimant’s favour. This limb is not in issue in that the proceedings terminated in the appellant’s favour after the charges against him were withdrawn under the provisions of Section 87(a) of the Criminal Procedure Code. Dexh 1 details that the matter was withdrawn when it was discovered that the appellant’s identity card had been stolen earlier and used to commit the offence.
37.However, it has been stated time and again in judicial circles that the termination of criminal charges alone cannot be a proof of malicious prosecution, it was held in Nzoia Sugar Company Ltd v Fungututi  KLR 399 it was held that:
38.Having stated as above, I find that from the evidence adduced and circumstances of this case, the respondents had every reason to believe that the appellant committed the offence, after investigations linked him to the offence, leading to his arrest. It was only after discovery that his national identity card had been used without his consent to enter into transactions that the prosecution sought to withdraw the charges against him, which act I find to have been in order. There is no evidence that the respondents acted maliciously and or that the process leading to the appellant’s arrest and prosecution before termination of the charges was actuated by malice. There is evidence by the appellant that the real perpetrators of the offence were arrested and charged.
39.The upshot of the above is that I find this appeal to be devoid of any merit. I dismiss it and uphold the trial court’s order on dismissal of the suit.
40.I however order that each party shall bear their own costs of this appeal and of the case before the trial court. This is because the respondents are public entities and, in my view, the appellant already suffered enough following the evens leading to his arrest and prosecution, due to acts of another criminal who stole his national identity card and used it to commit crimes.