Mwanzia v Inspector General of Police & 4 others (Constitutional Petition 3A of 2022) [2023] KEHC 24022 (KLR) (25 October 2023) (Judgment)
Neutral citation:
[2023] KEHC 24022 (KLR)
Republic of Kenya
Constitutional Petition 3A of 2022
TM Matheka, J
October 25, 2023
IN THE MATTER OF THE ALLEGED CONTRAVENTION OF
FUNDAMENTAL RIGHTS AND FREEDOMS UNDER ARTICLES 2, 10, 25
(C), 27, 29(A) (D), 47, 49, 50, 157(11) AND 244(C) OF THE
CONSTITUTION OF KENYA
AND
IN THE MATTER OF MAKINDU CHIEF MAGISTRATE’S COURT
CRIMINAL CASE NO. 45 OF 2016 - REPUBLIC -VS- PAUL THADDEUS
MWANZIA & 5 OTHERS
AND
IN THE MATTER OF MAKINDU CHIEF MAGISTRATE’S COURT
CRIMINAL CASE NO. 44 OF 2016-REPUBLIC -VS- PAUL THADDEUS
MWANZIA & 2 OTHERS
Between
Paul Thaddaeus Mwanzia
Petitioner
and
Inspector General of Police
1st Respondent
Director of Public Prosecutions
2nd Respondent
No. 80975 Corporal Edward Mwaura
3rd Respondent
Augustine Kioko Suka
4th Respondent
Makindu Chief Magistrate’s Court
5th Respondent
Judgment
1.Paul Thaddaeus Mwanzia, the Petitioner brought this petition against the Respondents hereinafter referred to as follows the Inspector General of Police 1st Respondent, The Director Public Prosecutions 2nd Respondent, the Investigating Officer (I.O) 3rd Respondent, Mr. Kioko (complainant), 4th Respondent, Makindu Law Courts 5th Respondent.
2.The petitioner’s case is that on or about 14/03/2016, at the instigation and/or instance of the 4th Respondent Mr. Kioko, the 3rd Respondent the I.O working for the 1st Respondent the Inspector General of Police and in blatant collusion and/or connivance with the 2nd Respondent the DPP, arrested him (Petitioner) without any basis in law or in fact. He was arraigned and charged before the 5th Respondent the Makindu Law Courts with the offence of malicious damage to property Contrary to Section 339(1) of the Penal Code. That in a blatant and fragrant display of malice and bad faith, he was charged with two criminal charges to wit Criminal Case No. 300 of 2016 and 308 of 2016 respectively which were later consolidated to become Makindu Criminal Cases No. 44 of 2016 and 45 of 2016 (herein after; CRC No 44 & 45 of 2016 and collectively, ‘the Makindu Cases’)
3.Further, it’s the petitioner’s case that the 2nd Respondent, actuated and/or motivated by malice, spite and bad faith and in clear breach of its constitutional duty to act independently, succumbed to the pressure of the 3rd Respondent and the 4th Respondent and approved the bogus and baseless charges. That he pleaded not guilty to the charges and in a clear demonstration that the whole prosecution was a sham and mere charade, the Makindu Court found that he had a case to answer and placed him on his defence. That quite surprisingly, he declined to defend himself or call any witness yet the Makindu Court proceeded to acquit him under Section 215 of the Criminal Procedure Code in CRC No. 45 of 2016.He was however convicted in CRC No. 44 of 2016 yet both cases were founded upon the same facts, transaction and investigated under one Occurrence Book (O.B NO. 17/9/6/16).
4.Further, it’s the Petitioner’s case that his conviction in CRC No. 44 of 2016 was quashed and sentence thereof set aside on appeal in Criminal Appeal No. E13 of 2020 in which the court held that he was wrongly convicted by the trial court. That to further demonstrate that the prosecution was being mounted for extraneous reasons, he was convicted and wrongly detained at remand custody at Emali Police Station for 28 days before being transferred to Makueni G.K Prisons.
The Petition
5.The petition is dated 07/07/2022 and seeks the following reliefs;a.A declaration that failure by the 1st, 2nd and 3rd Respondents to conduct investigations and charge the 4th Respondent in the complaint raised by the Petitioner about his case vide Occurrence Book (O.B.) No. 27/6/1/16 was a violation of the Petitioner’s rights to protection of the law and fair administrative action guaranteed under the Constitution of Kenya 2010.b.A declaration that arresting, charging and consequent prosecution of the Petitioner by the Respondents was unlawful and in violation of the Petitioner’s rights guaranteed under the Constitution of Kenya, 2010.c.An order for compensation for malicious prosecution and false imprisonment.d.An order for general and punitive damages.e.An order for general and exemplary damages suffered consequential to the declarations of violations of the Petitioner’s fundamental rights and freedoms.f.This Honourable Court do issue such Orders and gives such Directions as it may deem just and appropriate in the circumstances of this matter.g.Costs of the Petition be awarded to the Petitioner
6.The petition is supported by the petitioner’s affidavit sworn on 06/07/2022. He deposed that on 06/01/2016, he made a complaint against Mr. Kioko at Emali Police Station vide Occurrence Book (OB.) No. 27/6/1/16. His report was that Mr.Kioko had cut down the sisal planted on a public access road. That on 09/01/2016 Mr. Kioko made a complaint against him with an accusation of malicious damage to his crops on his alleged parcel of land vide OB No. 17/9/1/16 and as a consequence, he was arrested, arraigned and prosecuted for two criminal offences in Makindu Court. Copies of the charge sheets are exhibited as PTM-1.
7.He deposed that he pleaded not guilty on both charges and the matters proceeded for full trial. That in Cr No. 45 of 2016, he was put on his defence but declined to defend himself or call any witness yet he was acquitted under Section 215 of the CPC. A copy of the judgment is exhibited as PTM-2.
8.That on 30/03/2016, the two criminal matters were fixed on the same day in different courts and a warrant of arrest was issued in one court while he was attending the other. That he explained himself and the warrant was lifted. A copy of the warrant is exhibited as PTM-3.
9.That he was denied the prosecution’s documentary evidence including charge sheets until 10/02/2017, almost a year later, when he applied for the same but the Makindu Court never compelled the DPP to supply them. Copies of the letters are exhibited as PTM-4.
10.He deposed that he applied for the court proceedings and paid for the same but they were not supplied until he sought assistance from the office of the Ombudsman. That upon being supplied, they were replete with errors and omissions which the court refused to rectify despite his protest letters. Copies of the emails and protest letters are exhibited as PTM-5. That the 2nd and 3rd Respondents completely failed to supply him with OB extracts despite being ordered by the Makindu court. Copies of application and Court Order are exhibited as PTM-6.
11.That in CR No. 44 of 2016, he was put on his defence and convicted on 26/08/ 2020. That after being sentenced, he was held at Emali Police Station with the remandees for a period of 27 days from 02/09/ 2020 to 29/09/2020 before being taken to Makueni Prison. A copy of the judgment is exhibited as PTM-7.
12.He deposed that the initial charge sheet in CR No. 44 of 2016 did not include the Land Reference number and upon its amendment, he did not plead to the new charge but continued to be tried with the initial charge. That he was convicted on the amended charge and on Appeal, the High Court agreed with him that his conviction was based on a charge that he had not pleaded to. A copy of the High Court judgment is exhibited as PTM-8.
13.Further, he deposed that the Police were biased and discriminated against him because he was the first to lodge a complaint but when Mr. Kioko reported his complaint, the I.O swiftly swung in to action and arrested him without carrying any investigations. That he followed the right legal channels by reporting a complaint and an OB. was recorded but no action was taken including investigating and arresting Mr. Kioko. That he wrote a complaint to the DPP who failed to recommend investigations of the complaint but instead recommended that the cases where he (petitioner) appeared as an accused do proceed to their logical conclusion. The complaint letter and response are exhibited as PTM-9.
14.He deposed that the charge against him was aimed at intimidating and coercing him to stop pursuing his complaint against Mr. Kioko who worked in cahoots with the I.O. That while acquitting him in CR No. 45 of 2016, the Makindu Court observed that the evidence brought by the prosecution was contradictory and hearsay and that some prosecution witnesses contradicted themselves and each other as to which crops were damaged, where they were damaged and who damaged them.
15.He deposed that he had been advised by his Advocates on record and verily believed the advice to be true that the DPP went against its own policy known as “the National Prosecution Policy Revised in 2015” which requires public prosecutors to ask themselves; would an impartial Tribunal convict on the basis of evidence available.?. That the DPP was aware that Mr. Kioko did not own the parcel of land on which the alleged plants were grown, a fact that the High Court harshly criticized. A copy of official search is exhibited as PTM-10.
16.It was also his deposition that the surveyors report produced in the trial court clearly indicated that the crops were grown on access road and not on Mr. Kioko’s land. The report is exhibited as PTM-11.
17.That without reasonable and probable cause, the DPP continued to prosecute the charges against him and caused the Makindu Court to commit him for trial for a period of more than 5 years.
18.He deposed that the I.O and Mr., Kioko collaborated to unlawfully and wrongfully arrest, detain, charge and prosecute him for an unreasonable period of time during which he suffered immense physical and mental torture, pain and anguish. That the Respondents acted jointly and severally in fabricating the criminal charges against him and proceeded to prosecute him without any reasonable basis in law and fact and as a result, the wrongful conviction was quashed by the High court and the sentence thereof set aside.
The Responses
19.The DPP through Prosecution Counsel Nyakibia Mburu, filed grounds of opposition dated 14/03/2023. The grounds are;a.That the application is baseless and unfounded in law.b.That the 2nd Respondent adheres to a strict code of conduct in carrying out its constitutional mandate.c.That the 2nd Respondent is not under the direction or control of any person or authority in exercising its constitutional mandate.d.That the 2nd Respondent made its decision to charge in good faith free of any malice of conflict of interest.
20.There are no responses from the other respondents but I have noted that submissions by the Attorney General, on behalf of Makindu Court (5th Respondent), are on record.
21.Parties elected to canvass the petition through written submissions and appropriate directions were given.
22.The 5th respondent ( Makindu Court), through Senior State Counsel P.A Chibole, filed grounds of opposition dated 22/02/2023. The grounds are;a.That the petitioner has not demonstrated before the honorable court how the 5th respondent has violated his constitutional rights.b.That it is well settled law that the petitioner ought to demonstrate how the respondents’ conduct constitutes an violation and/or contravention of their fundamental rights and freedoms. This was established in the case Anarita Karimi Njeru – v- R (1976-1980) KLR 1272 where the court stated that the petitioner must state and identify the rights with precision and how the same have been or will be infringed in respect to them.c.That under Article 160(5) of the Constitution of Kenya 2010 and section 6 of the Judicature Act, a Judicial Officer is protected under the law from both civil and criminal liability in respect of anything done or omitted to be done in good faith in the lawful performance of a judicial function.d.That it is trite learning that acquittal per se, on a criminal charge is not a sufficient basis to ground a suit for malicious prosecution. See the case of Nzoia Sugar Company Limited – v- Fungutuli [1988]eKLRe.That in the present petition, the petitioner did not even show that the complaint was false and that it was full of spite or malice.f.That the Petition also offends the provisions of section 106 and 107 of the Evidence Act on the burden of proof as mere generalized assertions and allegations have been made without any such supporting evidence for instance on the suffering occasioned to the petitioner and in particular by the 5th respondent.g.That it is also trite that in any claim for general and /or special damages, the party claiming must formally prove their claim which the petitioner has failed to do.h.That the police under the National Police Service Act have a mandate which include but not limited to;i.Provision of assistance to the public when in need.ii.Maintenance of law and orderiii.Preservation of peaceiv.Protection of life and propertyv.Investigation of crimesvi.Collection of criminal intelligencevii.Prevention and detection of crimeviii.Apprehension of offendersix.Enforcement of all laws and regulations with which it is charged and performance of any other duties that may be prescribed by the inspector general under this Act or any other written law from time to timei.That the police have therefore acted in accordance with the power conferred upon them by law.j.That the power to prosecute is vested upon the office of the Director of Public Prosecutions under Article 157 of the Constitution of Kenya and the said office is an independent constitutional office that is only subject to control of the court based on the principles of illegality, irrationality and procedural impropriety.k.That the conduct of the respondents does not constitute any violation of the petitioner’s rights.l.That judicial intervention by the High Court should be limited to acts that are manifestly in breach of the law or where the court is satisfied that the decision maker reached a wrong decision influenced by other considerations other than the law, evidence and the duty to serve the interest of justice.m.That the petition is frivolous, vexatious, incompetent and improperly before court and an abuse of the court process.
The Petitioner’s Submissions
23.The petitioner, through his Counsel D. Muinde, identified the following as the issues for determination;i.Whether the arrest and prosecution of the petitioner was illegal and unlawful or actuated by malice and whether it was done in violation of the petitioner’s constitutional rights;ii.What compensation, if any, is the petitioner entitled toiii.Who is entitled to costs?
24.On the legality of the petitioner’s arrest and prosecution, he submitted that this matter is basically about malicious prosecution. He relied on Article 29 of the Constitution for the submission that every person has the right to freedom and security of the person, which includes the right not to be deprived of freedom arbitrarily or without just cause. That the principles governing a claim founded on malicious prosecution were laid down by Cotran, J in the case of Murunga – v- Attorney General, [1979] KLR, 138 as follows:a)The Plaintiff must show that the prosecution was instituted by the Defendant, or by someone for whose acts he is responsible.b)The Plaintiff must show that the prosecution terminated in his favour.c)The Plaintiff must demonstrate that the prosecution was instituted without reasonable and probable cause.d)He must also show that the prosecution was actuated by malice.
25.He also referred to Clerk & Lindsell on Torts, 18th Edition at page 823 where the essentials of the tort of malicious prosecution are given as follows:
26.The petitioner reiterated that his arrest and prosecution was without basis in law and fact and that the DPP maliciously breached its constitutional mandate of independence and approved bogus and baseless charges. That the trial court acquitted him in CR 45 of 2016 and the DPP did not appeal. He also reiterated that his conviction in CR 44 of 2016 was eventually quashed by the High Court which held that he had been wrongly convicted.
27.He submitted that the trial court violated his right to a fair trial as guaranteed by article 25( c) of the Constitution when it failed to ensure compliance of its order, of 13/12/2019 to the prosecution, to furnish him with materials for his defence. He submitted that he was being tried for two similar offences but in two different case files. That the court had allowed for consolidation of the two cases but instead of the consolidation, the DPP undertook amendment of the charge sheet and the two matters continued to be heard separately and at times, the matters would be fixed for the same date. That at one time, a warrant of arrest was issued against him for failure to attend court yet he was in the other court. That he was arrested only for the warrants to be lifted.
28.He contended that the Prosecution maintained the two cases in different courts in the same day in order to disorient him and destabilize his defence thus interfering with his rights to a fair trial.
29.He submitted that the facts of the cases were a clear demonstration that the charges were orchestrated by malice as no reasonable and honest person could have believed that his prosecution for malicious damage to property was likely to succeed, taking in to account that the crops purportedly destroyed were found to have been grown in a road reserve.
30.He submitted that his rights to protection of the law and fair administrative action as guaranteed by Article 47 of the Constitution were breached as he did not receive any fair and impartial administrative action from the respondents. He contended that in a civilized society like ours, it is not right to close our eyes and ears when police officers arrest and charge innocent Kenyans and have them taken through unnecessary criminal trials like in the instant Petition.
31.He submitted that his complaint was recorded in an OB but attracted no action despite his written complaint to the DPP yet the same DPP recommended prosecution and logical conclusion of the cases where he (Petitioner) had been charged and which were reported after his complaint. He cited the case of Anthony Murimi Waigwe – v- Attorney General & 4 others [2020] eKLR where the expressed his view regarding the roles of the ODPP as follows;
32.He also relied on the case of Republic – v- Director of Public Prosecution & another Ex Parte Chamanlal Vrajlal Kamani & 2 others [2015] eKLR where the Court held;
33.He acknowledged that the trial court was only subject to the Constitution and the law in exercise of its judicial authority but contended that Commissions and Independent Offices must operate within the law. He cited RE the matter of the Interim Independent Electoral commission [2011] eKLR at para 60 where the Supreme Court stated as follows:
34.He submitted that contrary to the submissions done by the Hon. AG on behalf of the 5th Respondent (Makindu Court), the Petition alleges violations by the court as an institution and there is no single allegation against the Magistrate who was presiding.
35.Further, it was his submission that the Petition has particularized and detailed the involvement of the issues and facts before court and has also particularized the violated Articles of the thus passing the standard set out in Anarita Karimi’s case.
36.He submitted that after perusing the 5th Respondent’s submissions and Grounds of Opposition, it would appear that although the Attorney General represents the 5th Respondent, its submissions purport to comment on the other Respondents whom he does not represent. He urged this court to ignore the Attorney General’s Submissions that relate to other parties other than its client.
37.Further, it was his submission that at the time of drafting his submissions, there was no response or joinder of issues by the other respondents and the implication is that they do not oppose the Petition. That the violations against him by the said Respondents remain wholly and largely unchallenged.
38.As regards the compensation he is entitled to, he relied on Article 23(3)(e) of the Constitution for the submission that in any proceedings brought under Article 22, a court may grant appropriate relief including an order for compensation which can take a form of an award of damages.He submitted that from the facts, it is clear that he was arrested for no reason, arraigned in court when there was no evidence against him and waited for six years for the cases to be concluded. That he was acquitted on one case and convicted on the other and sentenced to 12 months which he served but the conviction was later quashed and sentence set aside. That his reputation has been damaged hence general damages and punitive damages should be awarded. He relied on Erastus Maina Karanja – v- Machakos County Government [2021] eKLR where the court expressed itself as follows:
39.He relied on Anthony Murimi Waigwe (Supra) where the Petitioner was awarded punitive damages of Kshs. 500,000.00 for malicious prosecution. He also cited Peter M. Kariuki – v- Attorney General [2014] eKLR where the appellant was awarded Kshs. 15,000,000.00 by the Court of Appeal as damages for violation of his constitutional rights.
40.In conclusion, he submitted that based on the gross violations meted against him and considering that he was maliciously prosecuted in two separate cases and in further consideration of the inflation of the Kenya shilling, an award of Kshs. 32,000,000.00 as damages for violations of his constitutional rights and Kshs. 1,000,000.00 as punitive damages should be awarded.
Submissions by the 2nd Respondent
41.The 2th respondent through Prosecution Counsel Nyakibia Mburu submitted that the petition is baseless and unfounded in law. That in carrying out its mandate, the DPP is governed by a strict code of conduct and the petitioner has failed to show how it was breached. Relying on section 6(1)(b) of the ODPP Act, she submitted that the petitioner’s prayer, for a declaration that his rights were infringed for failing to charge Mr. Kioko, is unobtainable as the DPP is not under anyone’s direction in deciding whether to charge or not.
42.She submitted that the DPP exercises his powers through delegation to public prosecutors hence the prosecutor who made the decision in this matter was exercising such powers. That the decision to charge was arrived at in strict compliance with the code of conduct and in line with the independence of the office.
43.It was also her submission that the petitioner is not entitled to compensation, damages or costs as he has failed to establish infringement of his fundamental rights and freedoms. She relied on R – v- DPP & Anor Ex-parte Chamanlal Vraslal Kamani & Others (2016) eKLR for the submission that the decision of the DPP should not be interfered with unless proof is shown of arbitrary use of the decision to prosecute.
Submissions by the 5th Respondent
44.The 5th respondent, through Senior State Counsel P.A Chibole, has identified the following as the issues for determination;a.Whether the 5th respondent’s conduct constitutes a violation and contravention of the Constitution of Kenya 2010b.Whether the petitioner has proved his case to the required standard and therefore the honorable court should issue the orders sought in the petition.c.Whether the petitioner is entitled to costs.
45.On whether the petitioner’s rights were infringed by the respondents, she has relied on Anarita Karimi Njeru (supra) and Mumo Matemu – v- Trusted Society of Human Rights Alliance & 5 Others (2013) eKLR for the submission that it is not enough to list Articles of the Constitution that were allegedly violated without giving specific facts.
46.Relying on Article 160 of the Constitution, she submitted that the Chief Magistrates Court has power to hear and determine disputes primarily of criminal and civil nature. That the immunity bestowed upon members of the Judiciary is intended to protect and safeguard Judicial Officers from being personally culpable for acts they performed in good faith. She relied Maina Gitonga – v-Catherine Nyawira Maina & Anor (2015) eKLR where the court stated;
47.She submitted that in as much as the High Court has supervisory jurisdiction over all other subordinate courts, persons, body and authorities exercising judicial or quasi-judicial functions, the same should only be invoked to acts that are manifestly in breach of the law or when the court is satisfied that the decision maker reached a wrong decision influenced by other considerations other than the law, evidence and duty to serve the interests of justice.
48.As to whether the petitioner has proved his case to the required standard, she relied on sections 107 and 109 of the Evidence Act for submission that the burden is on the petitioner to prove the allegations. She contended that the petitioner did not even show that the complaint by the 4th respondent was false and full of spite and malice. She relied on Peter Ngari Kagume & Others – v- Attorney General; Constitutional Petition No. 128 of 2006 where the court stated that;
49.She submitted that the police acted upon the complaints made by the petitioner and 4th respondent and after investigations, charges were preferred against the petitioner. That the petitioner was accorded a fair hearing and convicted accordingly. That the petitioner exercised his right of appeal and was successful. Further, she submitted that the withdrawal of the petitioner’s case for lack of sufficient evidence does not mean that his arrest and prosecution were malicious in any away.
50.She submitted that the prayers sought in the petition are only meant to interfere with the institutional independence of various institutions like the office of the DPP and Kenya Police.
51.As to whether the petitioner is entitled to costs, she submitted in the negative and contended that matters in the domain of public interest litigation tend to be exempted from award of costs.
Analysis and Determination
52.I have carefully considered the petition, the responses by the respondents, the submissions, and the record. I find that the following issues arise for determination;a.Whether the failure to arrest and prosecute the 4th respondent violated the petitioner’s rights to protection of the law and fair administrative action.b.Whether the petitioner was maliciously prosecuted and falsely imprisoned.c.What compensation, if any, is the petitioner entitled to.d.Which orders should the Court issue
Whether The Failure To Arrest And Prosecute The 4Th Respondent Violated The Petitioner’s Rights To Protection Of The Law And Fair Administrative Action
53.At paragraph 2 of the affidavit in support of the petition, the petitioner deposed that on 06/01/2016, he made a complaint against Mr. Kioko at Emali police station vide OB No. 27/6/1/16 where he reported that Mr. Kioko had cut down the sisal planted on a public access road. In the correspondences exhibited as PTM-5, there is a letter dated 14/02/2019 written by the petitioner and addressed to Makindu Law Court. At paragraph 4 therein, he requests that the OCS, Emali Police station be compelled to produce in court; OB 37/13/1/16, OB 17/9/1/16, OB 17/9/6/16 and the OB recorded by PC Francis Ndeti Nzuve at Emali Police Station on 13/3/2016.
54.Further, there is an order by Makindu SRM Court issued on 23/12/2019 in response to a letter written by the petitioner on 11/12/2019. Paragraph 1 states that “THAT the 1st accused (Paul Thaddeus Mwanzia) be supplied with extracts of OB 17/9/1/2016, 17/9/6/2016 and OB 37/13/1/2016”. There is another letter dated 17/02/2020 written by the petitioner and addressed to Makindu Law Courts. At paragraph 4 therein, he requests that OB 17/9/1/16, 17/9/6/16 and 37/13/1/16 be produced in court.
55.It is not clear why the Petitioner was asking for the supply of these other OB records as none of them correspond with the one containing his report OB reference No. 27/6/1/16 and as such, there is no evidence upon which this court can conclude that a report was made by the petitioner at Emali police station. The Court even responded to his letter and pointed out that the request for these records was vague .
Whether The Petitioner Was Maliciously Prosecuted And Falsely Imprisoned.
56.In the submissions by counsel for the Petitioner at paragraph 14 counsel states ” the petition is anchored on violation of articles 2,10,25,( c) ,27,29(a) , (d),47,49,50, 157(11), 244(c ) of the Constitution., the foundation being that the petitioner was arrested and charged with an offence, but was later acquitted . It is basically a matter of malicious prosecution” (emphasis mine)
57.The Black’s Law Dictionary, Thomson West Publishing, 8th Edition, 2004, defines malicious prosecution as follows;
58.The above test was explained by the East African Court of Appeal in Mbowa – v- East Mengo Administration [1972] E.A. 352 at 354 (Per Lutta JA); as follows;
59.Further, the principles have been restated by the Court of Appeal of Kenya in Patrick Nyakonu Ombati – v- Credit Bank Limited [2016] eKLR, Robert Ombeka – v- Central Bank of Kenya [2015] eKLR and James Karuga Kiiru – v- Joseph Mwamburi & others [2001] eKLR.In this case, i is evident that two criminal cases were initiated by the DPP against the petitioner pursuant to complaints by Mr. Kioko. The petitioner was charged, before the Makindu Senior Principal Magistrate Court, with the offence of malicious damage to property contrary to section 339(1) of the Penal Code in both cases.
60.In CRC No 45 of 2016, the petitioner was acquitted by the trial Court under section 215 of the Penal Code and in CR 44 of 2016, he was convicted and fined Kshs 50,000/= and in default to serve 12 months imprisonment. He appealed to this court (Dulu J) whereupon his conviction was quashed and sentence set aside. The two cases were therefore terminated in his favour. The upshot is that the first and fourth elements of the test the initiation or continuation of a suit, and favourable termination of the law suit” have been satisfied.
61.The other test is that of whether or not there was a probable cause in the petitioner’s prosecution? The petitioner has argued that any reasonable person would not have believed that the prosecution was likely to succeed. The legal text Salmond on the Law of Torts defines reasonable and probable cause to mean: -
62.Further, the English case of Hicks – v- Faulkner (1878) 8 QBD 167 defined reasonable and probable cause as follows:
63.In this case, I do not have the benefit of the record of the trial in the subordinate court but I have looked at the exhibited judgments. Firstly, it is important to interrogate the ingredients of the offence of malicious damage to property in order to understand what a reasonable person would be looking for in determining whether proceedings are justified. Section 339(1) of the Penal Code provides as follows;
64.I am in agreement with the interpretation of the section by Justice Ngaah in Simon Kiama Ndiangui – v- Republic [2017] eKLR where he stated that;
65.In CRC NO. 44 of 2016, the judgment shows that the prosecution called four witnesses. PW1 was the complainant, Mr. Kioko, and he testified that on 08/01/2016, he was informed via phone call that some people were cutting mango trees on his farm. On 09/01/2016 he proceeded to the farm and confirmed that 33 mango trees, a paw paw tree and sweet potatoes had been damaged. PW2 testified that on the instructions of PW1 he hid in PW1’s farm together with others and at around midnight, he saw the petitioner among the people who were cutting mango trees using pangas and axes. On cross examination by the petitioner, he stated that the petitioner arrived on board a probox motor vehicle, approached the farm, went in and started cutting trees. PW3 was the agricultural officer who assessed the damage on PW1’s farm at Kshs 5,287,500/= and produced the report as P. Exb 2. PW4 was the investigating officer who testified that on 09/01/2016, the complainant reported that 33 mango trees and a paw-paw tree had been damaged on his farm.
66.A casual look at the summarized evidence above shows that some property in form of fruit trees was destroyed and that the petitioner was mentioned by an eyewitness as one of the people who caused the damage. Evidently such evidence would make a DPP counsel to genuinely believe that prosecution would be justified. As indicated elsewhere above, the petitioner was convicted in the case but the conviction was overturned on appeal.
67.At this juncture, it is important to indicate that according to the appellate court, the elements of damage, identification of the petitioner and willful destruction were proved by the prosecution. The point of departure was that the said destruction was not unlawful as the plants were on a public road and not on the complainant’s farm. The appellate court also found that the learned trial magistrate had erroneously convicted the petitioner on a charge which had been replaced. The upshot is that even from the appellate court’s judgment, it is discernible that there was a probable cause to prosecute the petitioner. The question then would be, where is the malice? From te foregoing facts malice cannot be imputed.
68.In CRC 45 of 2016, the judgment does not summarize the witness accounts but the trial magistrate stated as follows;
69.After the full trial, the trial magistrate found that the prosecution had not proved its case beyond reasonable doubt as the evidence was contradictory however, just like in CRC No. 44 of 2016, the above judgment extract shows that property in form of fruit trees was destroyed and the petitioner was mentioned by an eyewitness as one of the people who caused the damage. Consequently, I reiterate my view that such evidence would make a DPP counsel to genuinely believe that prosecution would be justified. It has been held in numerous decisions that an acquittal in itself does not indicate that prosecution was malicious. In Nzoia Sugar Company Ltd – v- Fungututi [1988] KLR 399, the Court of Appeal held;
70.The petitioner argued that his prosecution was meant to intimidate him in order to abandon his complaint against Mr. Kioko who worked in cahoots with the I.O. Unfortunately; there is nothing to show that he actually made a complaint against Mr. Kioko. It was also the petitioner’s argument that the DPP was aware that subject parcel of land was not owned by the complainant because a surveyor’s report was produced in the trial court. I have looked at the said report (PTM-11) which is dated 07/12/2015 and addressed to the Land Registrar –Makueni County. It is evident that the report was introduced by the defence during trial. Consequently, there is nothing on which to base a conclusion that indeed the DPP was aware. It could be a case of incomplete investigations by the I.O which, in my view, does not translate into malicious prosecution.
71.As to whether the petitioner was falsely imprisoned, I have not heard him saying that he was not presented to a court of law within 24 hours after arrest. His argument is that he was convicted and wrongly detained at remand custody at Emali Police Station for 28 days before being transferred to Makueni G.K Prisons. In the Ugandan case of Mugwanya Patrick v Attorney General High Court Civil Suit No. 154 of 2009 Justice Stephen Musota (as he then was) stated that;
72.In this case, if indeed the detention complained of what happened, then it was after conviction hence no proof of false imprisonment. He was already a convict awaiting to be transported to the Prison. Due process had been followed and the authorities were justified in restraining him.
What Compensation, If Any, Is The Petitioner Entitled To?
73.The court is obligated to assess damages that it would have awarded if the matter was successful. The petitioner had proposed an award of Kshs. 32,000,000.00 as damages for violations of his constitutional rights and Kshs. 1,000,000.00 as punitive damages. It is trite that courts have discretion to award general damages which are meant to give a fair compensation to the aggrieved for the offending actions of the defendant.
74.The petitioner clearly stated that this was a case of malicious prosecution. Damages for Malicious prosecution need not necessarily be pursued through the route of violation of Constitutional rights. It could be pursued as a normal tortious claim.. Musyoka J had this to say in . Dickson Chebuye Ambeyi v National Police Service & another; Peter Sifuna Wesonga & another (Interested Parties) [2020] eKLR
75.I agree. Reading through the petition I find that there is insufficient evidence to support the claim for malice or ill will. This required that the petitioner testify and give evidence to support his claim. How does the court assess general damages without proof of the damage?
76.Hence in my view the claim of violation of the rights of the petitioner is not proved and the same is dismissed with costs. I am required however to determine damages if I had found the petitioner successful. He submitted for Ksh 32,000,000. However, he did not lay any basis for that claim. He did not lay any basis for the claim for general damages to enable the court make that assessment. In Joseph Wamoto Karani - v- C. Dorman Limited & another [2018] eKLR where a global award of Kshs 2,000,000/= was made. Perhaps a global sum of Ksh Kshs 2,000,000 would have been adequate compensation.
77.Otherwise the petition is dismissed with costs.
DATED SIGNED AND DELIVERED VIA EMAIL THIS 25TH DAY OF OCTOBER 2023MUMBUA T MATHEKAJUDGE