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Court of AppealPartially AllowedCivil Appeal (Kisumu)· [1988] KECA 93 (KLR)

Nzoia Sugar Company Limited & another v Fungututi & another (Civil Appeal 7 of 1987) [1988] KECA 93 (KLR)

Court of Appeal of Kenya
29 July 1988
2,309 words in judgment
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The bottom line

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Kenya's Court of Appeal ruled that winning an acquittal is not enough to sue for malicious prosecution; actual malice must be proved.

What this practically means

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Executive summary

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The respondent, an administrative clerk of the appellant sugar manufacturing company, was reported to the Webuye police by the company's security officer in April 1979 over the disappearance of a gas cooker. Charged with stealing by servant, he was discharged at the close of the prosecution case under section 210 of the Criminal Procedure Code. He sued the company in the High Court; Gicheru J found malicious prosecution established, and Aganyanya J awarded Shs 97,399 in damages - calculated almost entirely on loss of earnings from an alleged wrongful dismissal plus medical expenses. The company appealed. The Court of Appeal (Apaloo JA writing the lead judgment, with Masime Ag JA and Platt JA concurring) allowed the appeal. It held that the award based on wrongful dismissal was unsustainable: dismissal was neither pleaded nor proved and the respondent had in fact tendered his resignation before his arrest, a point counsel did not seek to defend. On malicious prosecution, the court held that a genuine report of lost company property by the firm's security officer, absent evidence of prior bad blood, was made with reasonable and probable cause, and that the claim failed above all for want of proof of malice: acquittal per se cannot ground the tort, and spite or ill-will must be proved against the prosecutor. A defamation claim would in any event have been time-barred under section 20 of the Defamation Act. The judgments on liability and damages were set aside, the plaintiff's suit dismissed, damages and costs paid ordered refunded, and costs awarded to the company here and below.

Key legal issues

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01

Proof of malice in malicious prosecution

Holding

The tort fails where there is no evidence of spite, hatred or improper motive attributable to the prosecutor or a servant whose conduct can be attributed to the company; mere acquittal does not supply malice.

Reasoning

The respondent's only basis for alleging malice was that the criminal charge terminated in acquittal under section 210 of the Criminal Procedure Code. The court held that spite or ill-will must be proved, and that no evidence supported an inference that the security officer who made the report acted from hatred or spite, or that the Personnel Manager, who made no report, was actuated by ill-will.

p. 5
02

Reasonable and probable cause

Holding

A report by the company's security officer of a genuine loss of company property was not made without reasonable or probable cause, and the trial judge's contrary conclusion was difficult to sustain.

Reasoning

The gas cooker's loss was not disputed; the acquittal rested on contradictory evidence because the report's author was not called as a witness. With no evidence of prior bad blood between the officer and the respondent, the court found it highly improbable the officer invented the story, and declined to share the judge's conclusion of absence of reasonable and probable cause.

p. 5
03

Damages founded on unpleased and unproved wrongful dismissal

Holding

The award of Shs 97,399, based on loss of earnings from alleged wrongful dismissal and medical expenses, could not stand because dismissal was neither pleaded nor proved and the respondent had resigned before arrest.

Reasoning

The pleadings confused defamation, wrongful dismissal and malicious prosecution; evidence was directed to matters not pleaded in breach of Order 6 rules 6 and 7 of the Civil Procedure Rules. No evidence of terms of employment, reason for dismissal or notice was led, and counsel for the respondent did not seek to support the award, which was therefore set aside.

p. 5

Legal principles established

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  • Acquittal on a criminal charge is not, of itself, a sufficient basis for a suit in malicious prosecution; spite or ill-will must be proved against the prosecutor.
  • An employer's security officer reporting loss or theft of company property to the police, absent evidence of prior bad blood, ordinarily acts with reasonable and probable cause.
  • A claimant founding a claim on wrongful dismissal must lead evidence of the terms of employment, the reason given for dismissal and the notice entitlement.

Court orders

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  1. 1.Appeal allowed
  2. 2.Judgments of Gicheru J (liability) and Aganyanya J (damages) set aside
  3. 3.Respondent's claim dismissed and judgment entered for the appellant Company
  4. 4.Damages and costs, if paid, to be refunded to the appellant
  5. 5.Appellant awarded costs of the appeal and of the suit in the court below
On appeal from
High Court of Kenya (Kakamega)
Jurisdiction invoked
First appeal to the Court of Appeal

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Nzoia Sugar Company Limited & another v Fungututi & another (Civil Appeal 7 of 1987) [1988] KECA 93 (KLR)", Case Analysis (1988). Civil Appeal (Kisumu). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1988/93/eng@1988-07-29

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.