Robert Okeri Ombeka v Central Bank of Kenya [2015] KECA 464 (KLR)
The bottom line
#Kenya's Court of Appeal ruled that reporting suspected crime to police doesn't make you liable for malicious prosecution, and money claims must be pleaded with figures.
What this practically means
#Executive summary
#Key legal issues
#Elements of the tort of malicious prosecution and the effect of an acquittal
The four elements - institution by the defendant, favourable termination, absence of reasonable and probable cause, and malice - must each be proved by the claimant; acquittal alone does not establish the tort, and a party who only reports a matter to the police is not the prosecutor
The Court adopted the classic formulation of the elements of malicious prosecution and held that the decision to arrest and charge was made by the police after their own independent investigation. The respondent bank had reasonable ground to suspect fraud because some certificates were 'bad'. Public policy favours exposure of crime and citizens should not be deterred from reporting suspected offences by fear of unfounded suits.
Whether the wrongful dismissal claim was pleaded and proved as special damages
The claim failed because special damages in a wrongful dismissal claim must be specifically pleaded and strictly proved; figures first calculated in submissions cannot cure the omission
The plaint sought general damages for wrongful dismissal 'with loss of benefits' without quantifying or particularising the loss. The particulars were known at filing, or the appellant could have applied to amend. Section 112 of the Evidence Act places the burden of proving facts especially within a party's knowledge on that party. The Court distinguished Dawa, where special damages had been pleaded and particularised though not quantified.
Appellate deference to trial judge's findings on credibility and discretion
The trial judge properly identified the instances of contradictions and demeanour supporting her adverse credibility finding, and the Court of Appeal will not interfere with a discretion exercised on correct principles
Following Ndungu Kimanyi and Omuroni, a trial judge must point out instances of demeanour relied upon; Kasango, J did so, finding the appellant's testimony replete with contradictions. Applying Mbogo v Shah and Matiba v Moi, the Court found no misdirection warranting interference.
Condemnation of prolix memoranda of appeal
A memorandum of appeal must set out grounds concisely and under distinct heads, without argument or narrative, per Rule 86(1) of the Court of Appeal Rules; verbosity does not enhance an appeal's prospects
The Court deprecated the appellant's 38 grounds of appeal elaborated in 98 pages of submissions, reiterating prior cautions from Law Society of Kenya v Vetting Board and Abdi Ali Dere that wordiness and repetition do not enhance the chances of success of an appeal.
Legal principles established
#- A first appeal is by way of retrial: the Court of Appeal must reconsider and evaluate the evidence afresh and draw its own conclusions, while making allowance for not having seen or heard the witnesses
- Acquittal in a criminal case is not, of itself, a sufficient basis for a civil claim in malicious prosecution; the claimant must separately establish, among other elements, lack of reasonable and probable cause and malice
- A complainant who merely reports suspected crime to the police, leaving investigation and prosecution to the police, is not liable for malicious prosecution even if the prosecution is unsuccessful
- Damages for wrongful dismissal or termination of a contract of employment are in the nature of special damages which must be specifically pleaded and strictly proved
- Counsel's submissions do not constitute evidence and cannot take the place of evidence in proving a claim
- Issues for determination in a suit flow from the pleadings, and a court may only pronounce judgment on issues arising from the pleadings or as framed by the parties
- The Court of Appeal will not interfere with a trial judge's exercise of discretion unless the judge misdirected himself or the decision is clearly wrong, resulting in injustice
Court orders
#- 1.The appeal be and is hereby dismissed
- 2.Costs of the appeal to the respondent
- On appeal from
- High Court of Kenya at Nairobi
- HCCC No. 3611 of 1995
- Jurisdiction invoked
- First appeal to the Court of Appeal under the Court of Appeal Rules; appellate jurisdiction over the High Court's exercise of original civil jurisdiction
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Robert Okeri Ombeka v Central Bank of Kenya [2015] KECA 464 (KLR)", Case Analysis (2015). Civil Appeal No. 105 of 2007. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/464/eng@2015-07-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.