Krystalline Salt Limited v Ngolo & 6 others (Civil Appeal 11 of 2022) [2023] KEHC 25337 (KLR) (7 November 2023) (Judgment)
Neutral citation:
[2023] KEHC 25337 (KLR)
Republic of Kenya
Civil Appeal 11 of 2022
DKN Magare, J
November 7, 2023
Between
Krystalline Salt Limited
Appellant
and
Kadzo Ngumbao Ngolo & 6 others
Respondent
Judgment
1.This is an appeal against the Judgment and decree of the Honourable W.K. Chepsemba Usui on 7/2/2022. It was read on 7/2/2022 in Malindi CMCC 244 of 2018.
2.The file appears unseemly, because of myriad of applications therein.
3.The memorandum of Appeal is a mind boggling 15 ground monolith that is prolixious, repetitive and strong on authorities and with polarity of consciousness and laser guided pleadings. The memorandum of Appeal is an anthem to good pleadings and a classic example of how never to plead.
4.The Appellant should file concise Memorandum of Appeal. Under Order 42 Rule, 1 provides are doth: -
5.The Court of Appeal had this to say in regard to rule 86 (which is pari mateira with order 42 Rule 1) in the case of Robinson Kiplagat Tuwei v Felix Kipchoge Limo Langat [2020] eKLR: -
The issues for Determination
6.There are only 2 issues raised in the memorandum of Appeal, that is: -a.Whether the Learned Magistrate erred in law and in fact in finding the Appellant liable for malicious prosecution.b.Whether the court disregarded principles for award of general damages for malicious prosecution.
Pleadings
7.The Respondent Kadzo Ngumba Ngolo filed suit indicating in the plaint that he was doing so as males adults (sic). The said males were not named in the plaintiff itself.
8.He stated that they were arrested on 23/5/2014 and charged with trespass contrary to Section 3(1) of the Tresspass Act, Cap 394, Laws of Kenya. That on 26/5/2023, they appeared in Criminal Case No. 147 of 2014.
9.In paragraph 5 several accused are named. They are said to have been released on cash bail of Ksh. 3,000. They had to seek funds to secure the cash bail. There was no probable cause for their arrest. They state they had to be prosecuted for 2½ years and were unlawfully and maliciously arrested.
Decision
10.In the judgment the court had 7 persons as plaintiffs. These were:a.Kadzo Ngumbao Ngolob.Joram Chea Msanzuc.Erick Fondo Mwandarod.Anderson Chea Mshanzue.Emmanuel Kazungu Charof.Kenga Ngumbao Jefag.Kazungu Wanje Nyale
11.The Court found the defendant liable and awarded each Kshs. 150,000 totaling to Kshs. 1,050,000/=. I have perused the judgment and note that the Court found as follows: -
12.I have perused the entire judgment, I cannot see a single authority or binding precedent or section of the Law relied on. There is no analysis of facts to find the correct position and no definition of what constitutes malicious prosecution and unlawful arrest.
13.The elements of malice are also not adumbrated. It is a judgment without a finding. This Court is supposed to peruse the record and see the consideration on the face of the record. The court is not supposed to encompass, surmise or engage in hyperbole in establishing evidence the court relies on. None of evidence is seen so far from the record. The judgment will leave parties, even the winning one at cross road.
14.They will say they have won, but they will be hazy on facts. I am unable to find the findings of the Court. What is disturbing is, that the judgment is not written by newly recruited Magistrate who is going through a learning curve. It is by a highly qualified Chief Magistrate of long standing. That judgment can disturb a mind of a reader. If does not instill confidence in the courts and give the loser a raison d’etre to accept. This could be the basis of the unseemly memorandum of Appeal. It is not to justify the kind of drafting I have seen, but it is to contextualize, problematize and conceptualize the basis for the kind of memorandum of Appeal that should never see the light of day. It is my view that advocates should take time to reflect before filing a memorandum of appeal. After all, they have a whopping 30 days to do so.
15.I agree that something may be moved by the sentimentality of situations especially arising from power relationships and go overboard. However, analysis of the law and keeping to the fidelity of the law is crucial. I recall the words, of the Supreme Court at paragraph 394 of the Presidential Petition No. 1 of 2017, Odinga & another v Independent Electoral and Boundaries Commission & 2 others; Aukot & another (Interested Parties); Attorney General & another (Amicus Curiae) (Presidential Election Petition 1 of 2017) [2017] KESC 42 (KLR) (Election Petitions) (20 September 2017) (Judgment) (with dissent - JB Ojwang & NS Ndungu, SCJJ), the court stated as doth: -
16.It is therefore crucial that at all times we remain to the oath of office and not be moved by mercy and compassion to trump upon the law. Given the nature of the claim, it is imperative that I analyse the facts afresh, recall my own conclusion. I am handicapped on only one aspect, the court which had the witnesses did not form opinion on their dememanor. The Court equally did not find who was telling the truth and half-truth.
17.There are no finding of fact, which will be binding on the Court. there is a huge lacunae left by the unmasked facts and evidence.
18.I am getting surprised that making a report to the police is a crime. It is not enough that a report be made. The report has to be made maliciously. It is not enough to find on the plaintiff’s case. There has to be a finding first on the burden of proof, discharge of the burden and the finding by the Court on the Defence.
19.In Odinga & another v Independent Electoral and Boundaries Commission & 2 others; Aukot & another (Interested Parties); Attorney General & another (Amicus Curiae) (Presidential Election Petition 1 of 2017) [2017] [Supra] (Election Petitions) (20 September 2017) (Judgment) (with dissent - JB Ojwang & NS Ndungu, SCJJ), the supreme court stated as doth regarding the burden of proof.
20.The evidence on record also deals with acquittal. It is necessary to make a definite finding on Acquittal over Section 215 or discharge under 210 of the Criminal Procedure Code.
21.Regard also has to be had of the surrounding facts and the circumstances obtaining given that there is a disconnect between the burdens of proof. Finally, there has to be a causal link between any action by a party and the results without this move from the realm of judicial decisions to awarding. As the Thomas Hobbes one stated in his treatise, the Leviathan,‘no arts no letters, no society and which is worst of all, continual fear, and danger of violent death; and the life of man, solitary poor, nasty, brutish and short. In that state of anarchy, freedom is curtailed and the courts have no role to play. What was the case in court? Who were parties? There was only one plaintiff. Kadzo Mumba Ngolo.
22.Though indicates to have had 6 others they are not named. Order 1Rule 1 provides who may be joined as parties. It provides as doth: -
23.Where a party intends to file a representing suit, he is entitled to do so under order 1 Rule 8. The same provides as doth: -
24.Where the Court got the names of the 2nd to 7 plaintiffs is a mystery. There was only one party in this matter who was not a plaintiff. He did not testify.
Proceedings
25.On 9/9/2019, the plaintiff withdrew the suit against the Attorney General. It was withdrawn with no order as to costs. James Obura testified and produced PCR 147 of 2014.
26.PW2 was Anderson Chea. He stated he was the plaintiff. He adopted his evidence. The case was closed.
27.The case was re- opened on 2/3/2021. The plaintiff stated he had authority to file the case. He had no document to show that the respondent was arrested over is his land. In re- examination he stated it is community land.
28.DW2 testified, that is Ishamael Kahaso Kapene. He worked with the Appellant. He produced his documents as exhibits 1- 5. He worked as a security supervisor. He reported that there were people planting in their farm. He reported their public relations officer who reported to the police. On cross examination he stated her left the company in June 2020. He did not know who was arrested. Their case was closed.
29.The court then proceeding to enter judgment for malicious prosecution. This is resulted in this appeal.
Submissions
30.The parties were directed to file submissions which they duly did. I have considered the same together with the submission filed in the court below.
31.It should be recalled that the suit in the lower court was filed on 8/8/2018. The plaint does not indicate the date of acquittal except to say that it is after 2 years of agony stress and mutual torture.
Appellants submissions
32.In the lower court, the appeal filed submission dated 18/3/2021. They relied on Daniel Waweru Njoroge & 17 Others v Attorney General [2015] eKLR, where Justice Mativo J. describes as false arrest as doth: -
33.On malicious prosecution they relied on Jackson Muthui Maluki & another v Attorney General [2020] eKLR, where the Court, Justice Richard Mwongo at page 3 stated as doth: -‘as a general rule an arrest of a suspect should not be made unless and until his or her case has been investigated and the arresting officer believes there are reasonable grounds for suspecting that the suspect has committed an offence. This is the minimum statutory criteria set out under Section 29 of the Criminal Procedure Code. The provision gives power to a police officer to make an arrest without warrant in the following terms:
34.They relied on the case of Alex Muturi Muriithi v Peter Mbogo & another [2015] eKLR, where Justice Florence Muchemi, the Court relied on the law and principles governing malicious prosecution were explained in the case of MbowaEast Mengo District Administration[1972] EA 352 by the former Eastern African Court of Appeal expressed itself as follows:-
35.They also indicated that the Court of Appeal has elucidated on the same. However, they have not stated on which authority.
36.Further they stated that the plaintiffs never made a case for false imprisonment.
37.They relied on Catherine Wanjiku Kariukiv Attorney General& another [2011] eKLR where thro court stated as doth:-
38.They relied on a myriad of authorities on the same point. The Court did not see the need or wisdom to consider binding precedent before it.
39.The appellant filed submission dated 4/7/2023. They are 21 pages. There is neither time nor space to regurgitate the same herein. They submitted that the case of malicious prosecution was not proved. They state that the respond has a duty to show that the prosecution was instituted by the defendant. They placed reliance on Gitau =vs= Attorney General Nayaganu Lourd Prakash v Standard Chartered Bank 2000 (10) TMI 968. They asked that we allow the appeal.
40.The Respondent filed a Response and stated that the resident proved their case. They also relied on the case of Mbowa v Easy Mengo Administration (Supra).
41.They are of the view that the Appellant was lying as they are the ones who reported and they confirmed that during the trial they stated that the second element, without a reasonable or probable cause, was proved. The appellant quoted in extension the case of Margaret Ndege & 3 Others v Moses Oduor Ademba [2011] eKLR.
42.They state that the plaint was filed and properly named in plaint dated 7/8/13. They state that they are described in the plaint was as per the Civil Procedure Rules on the issue whether there was an error in allowing the Ag to be of the case, they stated that the same is proper under Order 5 Rule 1.
43.On this they relied on Samuel Wambugu Mwangi =vs= Othaya Boys High School, Nyeri [2014] eKLR on whether the Court considered the principles of malicious prosecution they state that the court considered to the same. They pray that the appeal be dismissed with costs to the “Respondents”.
Analysis
44.It will be a tragedy of cataclysmic proportions if the court does not conceptualize, problematize and contextualize the genesis of the legal imbroglio in Court today. This is both for the benefit of the parties and posterity. The parties must remember that for any wrong for a party to be liable there has to be causation.
45.The first question is that needs to go out of the way is whether the withdrawal against the AG was proper. That decision was made by consent of the parties. Further it was made on 9/9/2019. The only time the same could be Have been changed was by 9/10//2019 by dint of Section 79G which provides as doth: -
46.There has to be an application to set aside a consent order. That application can only be allowed if the applicant meets the requirements set but in the law and precedent, that is on the same grounds that a contract can be set aside. This was so held in the case of Flora Wasike v Destimo Wamboko [1988] KLR 42, where Hancock J.A. as he was then stated: -
47.This follows an earlier decision of the former Court of Appeal for Eastern Africa in Brook Bond Liebig v Mallya (975) EA, 266, where they stated that a consent judgment may only be set aside for fraud, collusion, or for any reason that which would enable the court set aside an agreement.
48.Finally in Hirani v Kasam [1952] EA 19 EACA 131, the Court of Appeal stated as doth:-
49.No such agreement has been sought to be set aside and as such the Attorney General no longer a party to those proceedings. The second question is to determine who the parties are. Though described in the body, of the plaint they are indicated to have been accused person. The only plaintiff in the matter wa Kadzo Ngumbao Ngolo. There was no authority filed to grant him any power to prosecute the case.
50.In spite of that, only Anderson Chea testified. He is neither the plaintiff nor party. The plaintiff who filed and verified the suit, Kadzo Ngumbao Ngolo did not testify. Even if we were to assume that all the named accused also because plaintiffs, they did not testify. Where a party does not testify, this claim becomes otiose. Each of the person who wanted to be the plaintiff should have testified. Malicious prosecution is personal. It is not something that can be delegated like defamation it goes to the core of the person. In the case of Simeon Nyachae v Lazarus Retemo Musa and Kalamika Ltd, the Court stated as doth:-
51.This the stage where any claim by the all the person except Andeyo Chea ought to have been dismissed, in limine.
52.Though I have found, that Anderson Chea was not a plaintiff for academic purposes I shall proceed with the rest of the issues. Though courts should not deal with issue for academic purposes, I must recall that the lower court did not analyse evidence, nor make finding of fact. This is crucial in case there is a second appeal that that there be established facts, on the record as a second appeal is on points of law.
53.This is a shield in the case of Ms Otieno Ragot and Company Advocates v National Bank of Kenya Limited [2020] eKLR, where the court stated–
54.The appellant’s employees reported trespass to the police. It is the duty of every citizen to do so. This was vide OB 14/23/5/14. The duty of the Appellant ended there. The police investigated and the ODPP recommended that accused person be charged. To them the complaint met the threshold for preferring criminal charges. The witness testified. On 16/3/2016, the court, in its wisdom, found that the accused had a case to answer.
55.In other words, by being put on their defence, a prima facie case had been established by the prosecution. in the civil standards, prima facie means a case pointing toward establishing the legal question being looked into. in the case of Mrao Ltd v First American Bank of Kenya Ltd& 2 others [2003] eKLR, the court of Appeal, Kwach, Bosire & O’Kubasu JJ A, stated as doth:-
56.The Justice, G V Odunga J,as he was then, stated as follows: -
57.Therefore, to be put on the defence, there has to be some “some evidence, irrespective of its credibility or weight, sufficient to put the accused on his defence. ipso facto, it means there was probable cause of reporting the case. the alternative of holding extremely high standards, is that parties will cease from reporting cases and use self help to primitively appeal to their primordial senses and resolve case brutally.
58.This will move the case the case from judicial realm to the Hobbesian state where parties appeal to their primordial state. this is what Thomas Hobbes once stated in his treatise, the Leviathan,‘no arts no letters, no society and which is worst of all, continual fear, and danger of violent death; and the life of man, solitary poor, nasty, brutish and short. In that state of anarchy, freedom is curtailed and the courts have no role to play.
59.The Court will use ordinary cause of nature and deal a probable cause and 67 of Silvia Kambura v George Kathurima Japhet & 2 others [2021] eKLR, where the court stated in the case of Silvia Kambura v George Kathurima Japhet & 2 others [2021] eKLR where they stated: -The Court considers that to “an ordinary reasonable prudent and cautious man,” in the words of Rudd J, in Kagane & Others vs The Attorney General & Another (1969) EA 643, the fact of there being 2 eye witnesses who testified to have seen the 1st Respondent destroying the property and who knew the property on which the damage occurred to belong to the Appellant, created an honest belief of the 1st Respondent’s guilt. This Court considers that based on the materials presented, including the Appellant’s own testimony as to ownership of the land, the prosecution cannot be said to have been done without reasonable and probable cause. The Court also considers that there was no evidence of malice on the part of the Prosecution or the Appellant. The Court, therefore, finds that the 3rd and 4th elements of the tort of malicious prosecution were not proven.
60.In the case of James Karuga Kiiru v Joseph Mwamburi & 3 Others [2001] eKLR, the court held that the proposition that to prosecute a person is not prima facie tortuous, but to do so dishonestly or unreasonably is. He cites Mbowa v East Mengo District Administration [1972] EA 352, for the proposition that the tort of malicious prosecution is committed where there is no legal reason for instituting criminal proceedings and that the purpose of the prosecution should be personal and spite rather than for the public benefit. He also cites Murunga v The Attorney General [1979] KIR 138 for the ingredients of malicious prosecution.
61.They were put on their defence. It is only after they defend themselves that the court they alleged that they did not trespass. They were on community land. To the prosecution, the said land belonged to the appellant. The Court faced with such, in a criminal case, has one duty, to give the benefit of doubt to the accused.
62.The benefit of doubt is explained by Justice John M. Mativo J as then he was in JMN v Republic (Criminal Appeal E017 of 2021) [2022] KEHC 279 (KLR) (7 April 2022) (Judgment) as doth: -
63.The Court was raising an issue on how the police took over investigations on a matter that was not reported. The police never went to the scene and photos of the scene of crime got exposed. The court blamed the police for swooping over the general area.
64.The blame was squarely on the police. The respondent in his wisdom withdrew the case against the Attorney General. He is the only one who can be liable for police behavior.
65.Secondly by dint of being put on their defence, there was a probable or prima facie case against the accused. Ipso facto, there can be no malicious prosecution where there is a case to answer. A repartee does not have a duty to counter check whether his evidence can meet the criminal threshold.
66.The citizens have a duty to report. It is a good thing. Otherwise parties will take the law into their own hands. 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.
67.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: -
68.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.
69.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: -
70.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:-
71.In the case of Ronald Nyaga Kiura vs. Republic [2018] eKLR, the Court held follows:
72.This means that the prosecution had evidence, which is not worthless or just a scintilla of evidence.
73.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.
74.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.
75.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: -
76.It means, upon the Court fining 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.
77.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. Kori, stated as doth: -
78.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.
79.A mere fact at 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 Mainde Murunga v Attorney General [1979] eKLR, where Justice E. Cotran, as then he was stated as doth: -1.That the prosecution was instituted by Inspector Ouma (there is no dispute as to this);2.That the prosecution terminated in the Plaintiffs’ favour (there is also no dispute as to this);3.That the prosecution was instituted without reasonable and probable cause; and4.That it was actuated by malice.”
80.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 Zipor Nzilu [2020] eKLR, that: -
81.In the case Ronald Nyaga Kkiura v Republic [2018] eKLR, the Court held follows:
82.This means that the prosecution had evidence, which is not worthless or just a scintilla of evidence. 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.
83.The suit has already being dismissed. However, it is imperative that when a claim is dismissed quantum be assessed. In this case only Anderson Chea testified. He was awarded 50,000/=. The same is modest. Had he had. I suit and succeeded, the amount is proper.
84.The rest of the so called plaintiffs never testified. They did not prove any injury. Consequently, I set aside the award of Kshs. 50,000/= to each of them. Even if I had found the appellant liable, the award of damages could not be awarded as they did not testify. The suit is bare. I will have dismissed prayers for damages.
Quantum
85.The duty is of the court is settled as regards quantum. The court cannot therefore with the award of damages unless the same is contrary to principles laid in the case of In the case of Mbogo and Another v Shah [1968] EA 93 where the Court stated:
86.The Court of Appeal, pronounced itself succinctly on the principles for disturbing award of damages in Kemfro Africa Ltd v Meru Express Servcie v A.M Lubia & Another 1957 KLR 27 as follows: -
87.Damages were not proved at all. The Court is under duty to assess costs. however, due to lack of evidence, there was nothing placed before the court to be able to assess any damages. the plaintiff did not testify. In the case of Andrew Mwori Kasaya v Kenya Bus Service [2016] eKLR, the court repeated the oft held principle regarding assessment of damages even if he court being under duty to assess damages, even if the case is dismissed. This was succinctly put forth as thus: -
88.In the circumstances, the appeal herein is wholly merited. Therefore, I allow the same in its entirety, set aside judgment in the lower court. In lieu thereof I substitute the same with an order of dismissing the suit with costs.
Determinationa. The Appeal herein is allowed in its entirety.b. The Judgment enter in Malindi CMCC 241 of 2018 is set aside in toto, and in lieu thereof I substitute the same with an order dismissing the suit in limine with costs to the Appellant.c. The appellant shall have costs of this appeal of Kshs. 85,000/=d. The file is closed.
DELIVERED, DATED AND SIGNED AT MOMBASA ON THIS 7TH DAY OF NOVEMBER, 2023. JUDGMENT DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM.KIZITO MAGAREJUDGEIn the presence of:Ms Anyango for the AppellantMs Onkoba for the RespondentsCourt Assistant - Brian