Tuku v Matano (Civil Appeal E107 of 2022) [2023] KEHC 23353 (KLR) (25 September 2023) (Judgment)
Neutral citation:
[2023] KEHC 23353 (KLR)
Republic of Kenya
Civil Appeal E107 of 2022
DKN Magare, J
September 25, 2023
Between
Omar Hussein Tuku
Appellant
and
Fahad Lausi Matano
Defendant
(Being an Appeal from the Judgement of the Senior Principal Magistrate’s Court at Mariakani, Olivia Koranje, Senior Resident Magistrate delivered in Mariakani SPMCC No. E008 of 2022 on 3rd November 2022)
Judgment
1.This is a fairly straight forward Appeal. The Court, Olivia Koranje, SPM in her well-reasoned judgment given on 3/11/2022 delivered judgment where she dismissed the Appellant’s suit in Mariakani SPMCC No E008 of 2022.
2.The Appellant had filed a claim against the Respondent claiming for malicious prosecution. I had to look at the Plaint twice. The police were not sued, and neither was the director of public prosecution. I have perused the entire, and cannot find an application to institute private prosecution.
3.I have perused a humongous 12 paragraph Memorandum of Appeal. It is prolixious, repetitive, and unseemly. The proper way of filing an Appeal is to file a concise Memorandum of Appeal without arguments, cavil or evidence. The rest of the King’s language should be left to submissions and academia. Order 42 Rule, 1 provides as doth: -
4.The Court of Appeal had this to say in regard to Rule 86 (which is pari materia with Order 42 Rule 1) in the case of Robinson Kiplagat Tuwei v Felix Kipchoge Limo Langat [2020] eKLR: -
5.Further in Kenya Ports Authority v Threeways Shipping Services (K) Limited [2019] eKLR, the court of appeal observed that: -
6.The Memorandum of Appeal raises only one issue, that is,The leaned magistrate erred in properly appraising the evidence and the law regarding the case for malicious prosecution.
7.The rest of the issues are ancillary, repetitive, prolixious and a waste of judicial time. The question this court will have to deal with is whether the Magistrate’s court had jurisdiction to hear and determine this dispute. This is the only issue addressed in submissions before the court below and before this court.
8.I have read the Appellant’s submissions and Memorandum of Appeal. I have not sighted the Respondent’s submissions. The Appellant’s submissions are a study on how not to write submissions. The fist 2 pages are basically a repetition of the Memorandum of Appeal. He then addresses the duty of the court as settled long ago by Clement De Lestang, VP, Duffus and Law JJA, in the locus classicus case of Selle and another v Associated Motor Board Company and others [1968] EA 123, where the law looks in their usual gusto, held by as follows;-
9.The Appellant maintains he was wrongly prosecuted. He forgot the tenor of:-
10.There is no way therefore the Respondent prosecuted the Appellant, whether malicious or otherwise.
11.They relied on the case of Gitau v Attorney General [1982] eKLR, where Justice J.P. Trainor, as then he was stated as doth: -The Plaintiff also claims damages for malicious prosecution. To succeed on that claim the Plaintiff must first establish that the Defendant or his agent set the law in motion against him on a criminal charge. “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 an arrest. It means being actively instrumental in causing a person with some judicial authority to take action that involves the plaintiff in a criminal prosecution. An example would be where a person prefers a criminal charge against another before a magistrate. Secondly he who sets the law in motion must have done so without reasonable and probable cause…..The first question to be answered is: who set the law in motion? I have been told and I accept that the responsibility for that rests entirely on the Officer-in-Charge of the police station, and Inspector Kimani accepts that he is the person responsible. That then raises the second matter that I said the plaintiff must prove: that the setting of the law in motion by the Inspector, was without reasonable and probable cause. It is with some hesitation that I find that the plaintiff has failed to discharge the onus. I have summarised the evidence of the Inspector and what DW1 and DW3 told him. If the Inspector believed what the witnesses told him then he was justified in acting as he did, and I am not satisfied that the plaintiff has established that he did not believe them or alternatively, that he proceeded recklessly and indifferently as to whether there were genuine grounds for prosecuting the plaintiff or not. I do not consider that the plaintiff has established animus malus, improper and indirect motives, against the witness.”
12.I have sadly noted that the excerpts are not a true reflection of the decisions of the court but a coloured mix and match. It is crucial for the solicitors to be true to their oaths in representing the tenor of case.
13.Consequently, they state they proved their case on 100% basis and pray that I award judgment.
Analysis
14.This appeal must fail. The claim for malicious prosecution must be made against parties who did the prosecution. Secondly there must be no probable cause for instituting the case. In this case, the Court found, under Section 210 of the Criminal Procedure Code that the Defendants had a case to answer.
15.A prima facie case in civil terms was defined in the case of Mrao Ltd v First American Bank of Kenya Ltd & 2 others [2003] eKLR as doth: -
16.It means, upon the Court finding there is a case to answer, there is a probable cause. The Complainants are not trained to determine whether there is a probable case. They report for people who took 6 years learning where to find the law, to make decision on a probable cause and a decision to charge. A Complainant has no control over that.
17.In the case of Okiya Omtatah Okoiti v Director of Public Prosecutions; Inspector General of National Police Service & another (Interested Parties) International Commission of Jurists (Kenya Section) (Amicus Curiae) [2022] eKLR, justice W. Korir, stated as doth: -
18.This means neither the Complainant nor the Investigator are responsible for prosecution. Once the Appellant was placed on his defence, his goose was cooked, fried and eaten. It will be pretentious to analyse the rest of the evidence upon the finding that they had a case to answer. The surrounding circumstances, equally vindicate the court.
19.A mere fact that a person has been acquitted without more is not a ground to sue for malicious prosecution. This is because the test as set out, correctly in my view, relying on the case of George Masinde Murunga v Attorney-General [1979] eKLR, where justice E. Cotran, as then he was stated as doth: -
20.There was judicial determination that the Appellant had a case to answer. A case to answer, was held to mean, in the case of Republic v Robert Zippor Nzilu [2020] eKLR that:-
21.In the case of Ronald Nyaga Kiura v Republic [2018] eKLR, the Court held follows:
22.This means that the prosecution had evidence, which is not worthless or just a scintilla of evidence.
23.The termination in favour of the Appellant applies at the case to answer stage. It is not always that all cases terminated at the case to answer are to be taken as malicious. It could simply because there was sloven prosecution.
24.I agree with the case of Douglas Odhiambo Apel & another v Telkom Kenya Limited, HCC 2547 of 1998. Unfortunately, that judgment referred was set aside by the Court of Appeal in Civil Appeal No 115 of 2006.
25.All said and done, the Appeal is without basis. The same is dismissed with costs.
Determination
26.The upshot of the foregoing is that I make the following Orders:a.The Appeal is hereby dismissed with costs of Ksh 75,000/= payable to the Respondent within 30 days.b.The file is closed.
DELIVERED, DATED AND SIGNED AT MALINDI, VIRTUALLY ON THIS 25TH DAY OF SEPTEMBER, 2023. RULING DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM.KIZITO MAGAREJUDGEIn the presence of:-Waithera for the AppellantNo appearance for the RespondentCourt Assistant - Brian