1.The Appellant (Plaintiff in the lower court) filed this suit in the lower court vide a plaint dated 10th January, 2019. He alleged that on or about 1st of August, 2016, the 1st Respondent (1st Defendant in the lower court) maliciously and without reasonable cause, provided false information to Jomo Kenyatta International Airport (JKIA) police station to the effect that he was involved in the offence of stealing goods in transit, contrary to section 268(1) as read with section 279 (c) of the Penal Code.
2.The Appellant alleged that despite pleading not guilty to the various charges preferred against him, the Respondents maliciously, and without reasonable and probable cause, proceeded to prosecuted him vide Criminal Case No.76 of 2016. He was acquitted on 13th March, 2017 under section 215 of the Criminal Procedure Code.
3.Based on the above facts, the Appellant sought general damages for malicious and spiteful prosecution; costs, and interest at court rates. The suit was dismissed on 11th September, 2020, with costs to the Respondents.
4.Aggrieved by the lower court’s judgment, the Appellant has filed this appeal dated 2nd October, 2020 on the following grounds:-
5.The parties agreed to dispose of the appeal by way of written submissions and accordingly filed and served their respective submissions dated 24th January, 2023; 5th January, 2023; and 7th February, 2023.
6.The Appellant submitted that the prosecution was actuated by malice. He claimed that the investigation was rushed, and was not thorough. He contended that it was pre –meditated; intended to arrive at a particular decision. He submitted that there was no reasonable cause to make a complaint to the police in the first place.
7.The Appellant submitted that the lower court ought to have found that the 2nd and 3rd Respondents had not produced any evidence at the trial court, and accordingly, his case was uncontested. He relied on the decision of the High Court in Kenneth Nyaga Mwige v Austin Kiguta & 2 Others (2015) eKLR where the Court stated the following:-
8.He submitted that just because he had been put on his defence, that fact alone was not sufficient to dismiss his suit for malicious prosecution. In support of the above, he relied on the decision of the High Court in Stephen Gachau Githaiga & another v Attorney General  eKLR, where the court stated as follows:-
9.Finally, he submitted that he ought to have been awarded general damages in the sum of Kshs. 500,000/=, which he contended was an appropriate figure based on his circumstances.
1st Respondent’s submissions
10.The 1st Respondent relied on the decision of the East African Court of Appeal in Mbowa vs. East Mengo District Administration  EA 352, where the court outlined the principles applicable to malicious prosecution in the following terms:-
11.The 1st Respondent submitted that it had proper and reasonable cause to report the occurrence of the theft to the police, from which the prosecution emanated. It submitted that the police conducted a proper and full investigation before charging and arraigning the Appellant. Further, that the decision to prosecute was, and is made, by the Director of Public Prosecution. It was a reasonable and justified decision because the court put all the accused persons to their defence.
12.It contended that there could not have been malice because none of the arresting officers knew the Appellant prior to the incident. Moreover, three out of the five accused persons were eventually found guilty, and were convicted of the offence of stealing goods in transit. Finally, it contended that there was no evidence of malice in the lower court. In support of the above, the 1st Respondent relied on the High Court decision of Margaret Ndege & 3 Others v Moses Oduor Ademba (2021) eKLR where the court held as follows:-
2nd and 3rd Respondents submissions
13.The 2nd and 3rd Respondents did not raise any new matters in their joint submissions. In their view, the police had acted reasonably and with probable cause because several of the staff, charged together with the Appellant, were eventually found guilty.
14.Further, that the rationale for charging the Appellant was because he was on duty the night that the cargo was stolen; and he was in control of the inventory at the time that the phones went missing. Finally, the entire team that was on duty were also investigated and held accountable for the loss, not just the Appellant.
Analysis and Determination
15.I have read the record in its entirety and considered the grounds of appeal raised by the Appellant. The central issues that arise for determination are as follows:-i.Was the prosecution actuated by malice?ii.Was the prosecution based on reasonable and probable cause?
Was the prosecution actuated by malice?
16.As this is a first appeal, I have a duty to re-evaluate the evidence before me. This principle as set out in the Court of Appeal decision of Selle and Another Versus Associated Motor Boat Company Ltd & Others  EA 123, where the court stated that:-
17.The law guiding the tort of malicious prosecution is well settled in this country. In Mbowa vs. East Mengo District Administration  EA 352, the East African Court of Appeal expressed itself as follows:-
18.In James Karuga Kiiru –vs- Joseph Mwamburi and 3 Others, Nrb C.A No. 171 of 2000, the court held:-
19.In Kagane vs. Attorney General (1969) EA 643, the court set the test for reasonable and probable cause. Citing Hicks vs. Faulkner  8 QBD 167 at 171, Herniman vs. Smith  AC 305 and Glinski vs. McIver  AC 726 the learned judge stated as follows:-
20.In my view, the foregoing is the applicable law and various conditions to be satisfied in order for a Plaintiff to succeed in the tort of malicious prosecution.
21.In the present matter, it is evident that the criminal proceedings terminated in the Appellant’s favour since the Appellant was acquitted following a full hearing.
22.As regards the question of whether criminal proceedings were instituted by the 1st respondent, the 1st Respondent’s case was that it simply reported the facts relating to the theft to the police, who carried out their investigations independently, and thereafter charged the Appellant in accordance with the law. Based on the record, the lower court found that the decision to charge and eventually prosecute the Appellant was reasonable based on the facts of the case. I have subjected the evidence to scrutiny and I am satisfied that the lower court reached a reasonable conclusion in this regard.
23.The law is clear that the mere fact that a person has been acquitted of the criminal charge does not necessarily mean that there was malice on the part of the prosecutor. Based on the record before me, it is evident that the decision to charge and prosecute the Appellant was based on a reasonable presumption and was applied equally to all the individuals who were on duty at the time of the theft. Moreover, the fact that several of the individuals who were charged were actually found guilty, shows that the decision was not baseless.
24.In the circumstances, as set out above, applying the law as stated in Kagane (supra) and Mbowa (supra) I do not think that the prosecutor acted in a dishonest or unreasonable manner. Moreover, as has been stated above, the burden of proving that the prosecutor did not act honestly or reasonably lay on the Appellant, as the person being prosecuted. I do not think this was done. I say so because looking at the record, it is clear to me that the 1st Respondent did not know the Appellant at the time he initiated the investigation relating to the theft of the 2nd Respondent’s cargo.
25.Further, the arresting officers had never met the Appellant prior to the incident. They were merely carrying out their proper role as officers of the law. Finally, the decision to prosecute an individual in Kenya lies with the Director of Public Prosecutions, and not with the complainant. Based on the record before me, I am therefore satisfied that the Appellant was prosecuted in accordance with the proper processes contemplated within the law, and without malice.
26.As regards the argument that being put on one’s defence does not defeat a claim for malicious prosecution, I would agree that this fact alone ought not to defeat a genuine claim. I am however of the view that in the present matter, the reasons for which the Appellant was put to his defence, disclosed a genuine case to answer, which, based on the facts, required a rebuttal of evidence before the court. Moreover, while no single factor may be determinative in relation to whether or not a case for malicious prosecution ought to succeed, the court cannot ignore the fact that a judicial officer felt the need to probe further, and investigate, whether or not a crime had been committed by the accused. The need for further forensic examination, to my mind, means that the case was not as clear-cut as the Appellant makes it out to be, because there was a need for further consideration and exploration as to whether or not a crime had been committed.
27.Based on the reasons as set out above, I do not think the Respondents ought to be faulted for reporting a genuine crime and for carrying out their lawful roles of investigating, and eventually prosecuting the same. In the end, I am of the view that the lower court reached a reasonable conclusion on all the issues raised.
28.Based on the reasons set out above, I find that the appeal lacks merit and the same is accordingly dismissed with costs.