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Court of AppealDismissedCivil Appeal 270 of 2003· [2009] KECA 259 (KLR)

David Kirimi Julius v Fredrick Mwenda [2009] KECA 259 (KLR)

Court of Appeal of Kenya
12 June 2009
1,665 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ruled that reporting a crime to the police does not make you liable for malicious prosecution if the police independently decide to prosecute.

What this practically means

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Executive summary

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This was a second appeal to the Court of Appeal at Nyeri against the decision of Mulwa, J (24 July 2003) allowing an appeal against an award of Kshs.75,000 general and Kshs.30,510 special damages made to the appellant, David Kirimi Julius, for unlawful confinement and malicious prosecution following his acquittal of assault. The appellant and respondent had been involved in a fight and each made reports to the police; the police charged the appellant, first in a prosecution withdrawn under section 87(a) of the Criminal Procedure Code, then in a full trial ending in acquittal under section 215. The Court of Appeal, in a single judgment of the court delivered by O'Kubasu, Githinji and Visram, JJA, held that an honest report to the police is not malicious, that acquittal does not of itself render a prosecution malicious, and that once the complainant made his report the police had exclusive control over the decision to arrest and prosecute. Relying on Jediel Nyaga v Silas Mucheke and Egbema v West Nile District Administration, the court found no evidence of a false report, malice, or absence of reasonable and probable cause. The appellant's complaint that the High Court failed to determine his counter-claim was not sustained, there having been no cross-appeal on that issue. The appeal was dismissed with costs to the respondent, thereby affirming the High Court's reversal of the subordinate court's award.

Key legal issues

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01

Whether the complainant who made a report to the police is liable for malicious prosecution and false imprisonment when the police arrest and prosecute the accused

Holding

No. Once Mwenda reported the assault, the police took over the matter; what followed was entirely in the police's control and Mwenda cannot be faulted for the appellant's incarceration.

Reasoning

The court applied Jediel Nyaga v Silas Mucheke and Egbema v West Nile District Administration, holding that where the complainant makes an honest report and the police independently investigate and decide to prosecute, the decision to prosecute is the police's alone. Acquittal does not of itself establish malice; there was no evidence of a false report, malice, or lack of reasonable and probable cause. If an honest report were malicious, the appellant who made a similar report would be equally liable.

p. 3
02

Whether the High Court judgment was invalid for failure to determine the respondent's counter-claim

Holding

The contention failed; there was no cross-appeal on the counter-claim before the superior court, so the judge could not determine it.

Reasoning

Counsel for the respondent argued that absent a cross-appeal, the superior court had no basis to comment on the counter-claim, and the Court of Appeal's disposition of the appeal on the malicious prosecution issue rendered the point academic. No contrary finding was made by the court on this ground.

p. 2

Legal principles established

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  • A complainant who honestly reports an offence to the police is not liable for malicious prosecution where the police independently investigate and decide to prosecute; the decision to prosecute being the police's, it cannot be attributed to the complainant absent a false or malicious report.
  • Acquittal of an accused does not, by itself, render the prosecution malicious; malice and absence of reasonable and probable cause must be proved against the person instigating the prosecution.

Court orders

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  1. 1.Appeal dismissed with costs to the respondent

Authorities

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Legislation

  • Penal CodeSection 251
  • Criminal Procedure CodeSection 87(a)
  • Criminal Procedure CodeSection 215

Cases cited (2)

  • Jediel Nyaga vs Silas Mucheke
    Civil Appeal No. 59 of 1987 (Nyeri) (UR)
  • Egbema vs West Nile District Administration
    (1972) E. A.
On appeal from
High Court of Kenya at Meru
H.C.C.A. No. 131 of 1999
Jurisdiction invoked
Second appeal to the Court of Appeal under the Civil Procedure Act (first appellate decision of the High Court in an appeal from the subordinate court)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "David Kirimi Julius v Fredrick Mwenda [2009] KECA 259 (KLR)", Case Analysis (2009). Civil Appeal 270 of 2003. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2009/259/eng@2009-06-12

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