|Civil Case 1792 of 1999
|CATHERINE WANJIKU KARIUKI v ATTORNEY GENERAL & BARCLAYS BANK OF KENYA LIMITED
|08 Apr 2011
|High Court at Nairobi (Milimani Law Courts)
|Hatari Peter George Waweru
|CATHERINE WANJIKU KARIUKI v ATTORNEY GENERAL & another  eKLR
|The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information
IN THE HIGH COURT OF KENYA
AT NAIROBI (MILIMANI LAW COURTS)
CIVIL CASE NO. 1792 OF 1999
CATHERINE WANJIKU KARIUKI ...........................................................................PLAINTIFF
1. THE ATTORNEY GENERAL
J U D G M E N T
The Plaintiff’s case as set out in the amended plaint dated 23rd June 2004 (the original plaint is dated 13th September 1999) is that, upon a complaint made to the police by her employer, the 2nd Defendant, she was arrested and charged vide Nairobi CM Criminal Case No. 3599 of 1994. She faced two counts, the first one being forgery contrary to section 349 of the Penal Code. The 2nd count was stealingcontrary tosection 275 of the same Code. The Plaintiff pleads that the prosecution was actuated by malice. Particulars of malice are pleaded.
The Plaintiff’s further case is that without waiting for the criminal case to end, and after suspending her from duty pending conclusion of the criminal case, the 2nd Defendant “unfairly” dismissed her from employment.
At the trial the Plaintiff testified but called no other witness. The 1st Defendant did not call any witness nor offer any evidence. The 2nd Defendant called one witness.
- Exhibit P1: a letter dated 12th January 1995 from the 2nd Defendant to the Plaintiff.
The documents in the 2nd Defendant’s list of documents dated 27th September 2001 were also by consent admitted in evidence and marked as Exhibit B.
I will now examine the Plaintiff’s claims in turns.
A claimant in malicious prosecution, in order to succeed, must establish the following on a balance of probabilities:-
(ii) That the prosecution was determined in his favour.
(iii) That the defendant in prosecuting him acted without reasonable and proper cause.
(iv) That the prosecution was actuated by malice.
It is the duty of every citizen to report to the police any crime suspected, upon reasonable ground, to have been committed, or being committed, or about to be committed. Once that civic duty is done, it is the business of the police to independently investigate the matter and arrive at their own conclusion whether any crime has been committed, is being committed or is about to be committed, and whether to charge anyone with such crime. The further role of any person making the initial report or complaint to the police can only be that of a witness.
In the present case, on discovering the theft and carrying out internal investigations, the 2nd Defendant reported the theft to the Criminal Investigation Department (CID) of the police who independently investigated the matter, and who then decided to charge the Plaintiff. The 2nd Defendant’s internal investigation was carried out by a retired police officer then in the employment of the 2nd Defendant.
There is no dispute that the prosecution was determined in favour of the Plaintiff. She was acquitted without being found to have a case to answer.
Let us now examine whether or not the Plaintiff’s prosecution was without reasonable and proper cause.
DW1, ARAKA JAMES OYAMO, testified in the present case for the 2nd Defendant. At the material time he was the 2nd Defendant’s Manager of Security Investigations and Fraud Management. He was a retired Superintendent of Police who had worked for 16½ years in the Banking Fraud Investigations Squad attached to the Central Bank of Kenya. After retiring in May 1990 he was employed by the 2nd Defendant.
His further testimony was that the cheque was indicated to have been issued against a cash payment over the counter, but no cash was paid. The cheque had in fact been issued against three forged cheques for amounts totaling KShs. 2.1 million. The cheques were drawn on Standard Chartered Bank, Kakamega branch. The three cheques were unpaid as they were forged. The net effect was that the 2nd Defendant lost KShs. 2.1 million.
DW1 also testified that he knew that the police carried out their own independent investigations and prosecuted the Plaintiff and another person. He never himself arrested the Plaintiff, nor did he prosecute her. There was no malice on his part in investigating the matter as it was his duty to do so.
DW1 never testified at the Plaintiff’s criminal trial, perhaps rightly so, as his investigation of the matter could not have replaced the investigation by the CID. But he did record a statement with the police. He said that he did not give his own opinion of the matter to the police as he expected them to independently investigate the matter.
As already noted, the Plaintiff was acquitted of the criminal charges. The trial court found that she had no case to answer. The court noted in its judgement –
“…….She (2nd accused - Plaintiff) was the cashier whom it was alleged received the cash from this person and this was based upon a stamp imprint on the alleged deposit slip. However, the prosecution could not establish her complicity. Needless to say, the laxity in that branch with respect to the instant transaction was something that should have caused those responsible to blame the senior managers …………..
“………I would like to reiterate that the laxity shown at the said bank with respect to the issue of this cheque when the bank had such elaborate procedures with respect to the same was, to say the least, amazing. What was even more surprising (was) that all the officers who were involved in the issue of this cheque were to blame equally for their laxity at what they each did and what made this laxity even more puzzling is that this cheque was passed for payment to days later after it was presented by the accused person (1st Accused – who was convicted) in his account……...”
The criminal court was satisfied that the bank (2nd Defendant herein) had indeed lost KShs. 2.1 million by way of a banker’s cheque that was fraudulently issued against some three forged cheques. The court blamed the loss upon the laxity and negligence of the senior officers of the bank at the branch concerned. The court could not understand how the theft escaped detection at all the check-points manned by those senior officers.
So, there having undoubtedly been theft of KShs. 2.1 million from the 2nd Defendant, it was only right that the matter be reported to the police. After carrying out their own independent investigations, the police found that the banker’s cheque for KShs. 2.1 million had been issued through the Plaintiff who was a cashier. The voucher upon which the banke’rs was issued indicated that the cheque was issued against a cash payment. The voucher and the cheque were stamped with the Plaintiff’s rubber stamp which she had exclusive possession of on the day in question. She had not reported missing the stamp at any time on that day.
Again, given the same circumstances, it cannot be said that the prosecution was actuated by malice. I find that the prosecution of the Plaintiff was not actuated by malice.
The Plaintiff has also sought damages for what she calls “unfair dismissal” from employment. I will take unfair dismissal to mean “unlawful dismissal”.
The letter of dismissal was dated 4th August, 1995. That letter stated in part:-
The above offence is in contravention of Clause A5 (a) (i) of the Collective Agreement and the Bank is justified to summarily dismiss you from its employment.
In view of this, the Bank is not prepared to have you continue in its services and with effect from today’s date, your services are terminated in accordance with the provisions of Clause A5 (d) of the Collective Agreement covering Section Heads, Clerical, Technical and Subordinate Staff, by the payment of one months’ salary in lieu of notice…….”
“Notice of Termination of Employment
The first thing to consider is whether the Plaintiff was guilty of misappropriating any funds or property belonging to her employer, or belonging to any person having business dealings with the employer.
At any rate, termination of her employment was as provided for in her contract of employment. She was summarily dismissed without notice upon payment to her of one month’s salary in lieu of notice, and for reasons given in the letter of termination, as provided by the contract.
The 2nd Defendant was thus not required to wait until conclusion of the criminal case before terminating the Plaintiff’s employment. The 2nd Defendant found it inappropriate, on reasonable and proper grounds, I must add, to retain the Plaintiff in its employment. The employment was terminated as provided for in the contract of service.
In the circumstances the plaintiff has failed to prove her entire claim on a balance of probabilities. The same is hereby dismissed with costs to the Defendant.
I have considered the little that has been stated regarding general damages in the written submissions filed on behalf of the Plaintiff. There was no mention at all in this regard in the submissions filed on behalf of the Defendant.
I have also considered the effect of the criminal charge and trial upon her reputation and good name in the eyes of her family, friends and the society in general.
As for wrongful dismissal, it appears that the Plaintiff was paid all her dues upon dismissal as provided for in the contract of employment. I thus would not have awarded her anything for this claim even if I had found for her on liability.
There has been delay in the preparation and delivery of this judgment. The same was occasioned by my poor state of health the last few years, exacerbated as it was by my transfer to Machakos, a very, very busy station, in early 2010. The delay is regretted.
DATED, SIGNED AND DELIVERED IN OPEN COURT THIS 8TH DAY OF APRIL, 2011.