Attorney General & 2 others v L.T. Benjamin Muema [2019] KECA 375 (KLR)
The bottom line
#The Court of Appeal upheld Kshs 6.4 million-plus damages against state officials who coerced a soldier's resignation and maliciously prosecuted him, confirming officials are personally liable.
What this practically means
#Executive summary
#Key legal issues
#Limitation - when time begins to run for a claim for malicious prosecution
Time began to run when the last nolle prosequi was entered on 9th April 2001; the suit filed on 27th December 2001 was within time, and the amendment joining the 3rd appellant related back to the date of commencement of the suit
The last criminal case terminated on 9th April 2001 when the nolle prosequi was entered by the Attorney General's office. The plaint was filed on 27th December 2001, less than nine months later. The joinder of the 3rd appellant by amendment related back to the date of commencement, and no appeal was lodged against the ruling rejecting the preliminary objection on limitation, foreclosing that ground on appeal.
Joinder of the 2nd and 3rd appellants as necessary parties
The 2nd and 3rd appellants were necessary parties under Order 1 Rule 3 of the Civil Procedure Rules, being directly involved in the arrest and prosecutions and personally liable for acts done in excess of lawful authority
The pleadings showed both appellants were directly involved in the arrest and unsuccessful prosecutions. The 2nd appellant handed the respondent to police without following the AFA procedures; the 3rd appellant requested the arrest. Officials acting in excess of lawful authority are personally liable. The appellants also did not appeal the joinder ruling.
Malicious prosecution
Malicious prosecution was proved to the required threshold; the numerous unsuccessful prosecutions, terminated in the respondent's favour, showed absence of reasonable and probable cause and malice
Applying the Murunga principles, the court found the prosecutions were instituted by the appellants, all terminated in the respondent's favour, and the large number of unsuccessful cases on the same facts evidenced malice, especially as the appellants tendered no evidence justifying the prosecutions, their witness admitting he was not privy to the events.
Forced resignation and unlawful removal from statutory employment
The respondent's resignation was obtained by coercion and was unlawful; the appellants breached the AFA by failing to conduct investigations, prepare an abstract of evidence and invoke court martial procedures before handing him to civilian police
The trial court believed the respondent's testimony that he signed the resignation surrounded by armed police; the appellants' witness admitted he was not privy to the events. The AFA's protective procedures were bypassed, robbing the respondent of statutory safeguards. Employment underpinned by statute must be terminated in accordance with the statute.
Delegation of the assessment of damages for loss of employment to the Deputy Registrar
The trial judge erred in delegating the assessment of damages to the Deputy Registrar; the Court set aside that order, assumed the mandate itself and awarded Kshs. 5,000,000 as compensation for loss of employment
Following Kenya Revenue Authority v Manginya Salim Murgan, quantification of damages is a judicial function that cannot be delegated to a Deputy Registrar. Bearing in mind the trite principles on quantum and the payments and pension already received by the respondent, the court fixed a global award of Kshs. 5,000,000 with interest from the date of the lower court judgment.
Applicable law on damages - repealed Employment Act 1976 vs Armed Forces Act
The repealed Employment Act 1976 did not govern the respondent's employment; his contract and commission were executed under the Armed Forces Act, so general damages in tort were available
The events leading to the resignation did not flow from a contract of employment under the Employment Act 1976 but from a contract and commission executed pursuant to the AFA. The claim was laid in tort, attracting general damages for the tortious wrongs committed by the appellants.
Legal principles established
#- A first appellate court must reconsider and evaluate the evidence itself and draw its own conclusions, while making due allowance for the fact that it neither saw nor heard the witnesses
- To succeed in malicious prosecution, a plaintiff must show that the prosecution was instituted by the defendant or someone for whose acts he is responsible; that it terminated in his favour; that it was instituted without reasonable and probable cause; and that it was actuated by malice
- Public officials are personally liable for acts done in their official character but in excess of their lawful authority
- Where an employment position is statutorily protected, the terms of the statute must be adhered to when terminating the employee's services
- The award and quantum of damages is a judicial function which a superior court cannot delegate to a Deputy Registrar
- Damages must not be inordinately high or low, and compensation is not meant to enrich the aggrieved party but to redress economic injustice
Court orders
#- 1.Kshs. 400,000/= general damages for false arrest and illegal confinement
- 2.Kshs. 400,000/= general damages for malicious prosecution
- 3.Kshs. 600,000/= general damages for unlawful detention and loss of use of the respondent's motor vehicles
- 4.Kshs. 5,000,000/= as compensation for loss of employment
- 5.The amounts awarded under items 1, 2, 3 and 4 above to carry interest at Court rates from the date of Judgment until payment in full
- 6.Appeal dismissed with costs to the respondent both on appeal and in the court below
- On appeal from
- High Court of Kenya at Nairobi
- Civil Suit No. 2230 of 2001
- Jurisdiction invoked
- First appeal to the Court of Appeal under the Court of Appeal's appellate jurisdiction
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Attorney General & 2 others v L.T. Benjamin Muema [2019] KECA 375 (KLR)", Case Analysis (2019). Civil Appeal No. 315 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/375/eng@2019-08-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.