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Case Brief · caselaw.co.ke
High CourtPartially Allowed

Joseck Simiyu Prichani v Attorney General, Ibrahim Nyongesa & David Wasilwa

High Court of Kenya
18 June 2020
4,371 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~17 min to read original · ~4 min brief

The bottom line

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Wrongful prosecution can lead to a lawsuit for damages, but proving specific financial losses requires strict evidence linking the arrest to the loss.

What this practically means

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Executive summary

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The 1st plaintiff, Joseck Simiyu Prichani, sued the Attorney General (for the Kenya Police Service) and two KANU members, alleging that following a report to Kimilili Police Station on 6 January 1992 that he and others were holding a meeting without a licence, he was arrested, detained and charged in Bungoma Criminal Case No. 36 of 1992 with an offence under section 5(3) of the Public Order Act Cap 56. He was acquitted under section 210 of the Criminal Procedure Code on 14 September 1992 and claimed special, general and exemplary damages for malicious prosecution. The 2nd to 11th plaintiffs' claims were marked abandoned after they failed to file witness statements or attend hearing. The 1st plaintiff testified alone; the defendants called no witnesses. Applying the settled four-limb test from Murunga v Attorney General and Mbowa, the court found the prosecution was instituted by the defendants' agents and terminated in the plaintiff's favour, and - because the arresting officer conceded the meeting was in a private place requiring no licence and the defendants tendered no evidence on how the decision to charge was made - that the prosecution lacked reasonable and probable cause and was actuated by malice. The claim for special damages of Kshs 516,594,827 was dismissed for failure of strict proof, the court finding the few days in custody could not have caused the colossal business losses claimed. A global award of Kshs 1,000,000 general damages was made. The judgment is silent on costs despite framing the issue.

Key legal issues

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01

Whether the prosecution was instituted without reasonable and probable cause

Holding

Yes - the arrest followed a tip from the public about a meeting in a private place requiring no licence, and police carried out no investigations.

Reasoning

The arresting officer PW7 conceded the meeting was in a private place so no licence was needed. The police acted purely on information from the public without any investigation. The objective test from Kagane requires material capable of satisfying an ordinary prudent and cautious man that the accused was probably guilty; no such material existed.

p. 5
02

Whether the prosecution was actuated by malice

Holding

Malice inferred from the absence of reasonable and probable cause and the defendants' failure to tender any evidence.

Reasoning

The court relied on Ombeka for the principle that acquittal alone does not establish malice, but here the defendants called no witnesses to show how the decision to arrest and charge was made. Unexplained failure to investigate and the officer's admission that no licence was needed supported an inference of improper motive.

p. 5
03

Whether special damages were proved

Holding

No - the claim of Kshs 516,594,827 was dismissed for failure of strict proof.

Reasoning

The plaintiff was in custody only a few days and thereafter free to conduct business. He did not demonstrate how the brief detention caused losses of hundreds of millions; no bank statements, receipts or pay slips were produced, and the audit report covered periods before arrest and after acquittal.

p. 5
04

Quantum of general damages for malicious prosecution

Holding

A global sum of Kshs 1,000,000 awarded.

Reasoning

Guided by Kaberuka, damages for injury to reputation, indignity and humiliation are inferred as natural consequences of the wrongful prosecution. The court considered the plaintiff's status as a teacher and the short period in custody in fixing a modest global award far below the Kshs 20 million claimed.

p. 5

Legal principles established

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  • The four essentials of malicious prosecution must all unite to establish a cause of action: institution of prosecution, absence of reasonable and probable cause, malice, and termination in the plaintiff's favour.
  • Where the defendant tenders no evidence on how the decision to arrest and charge was made, the court may find absence of reasonable and probable cause, particularly where police acted on public information without investigations.
  • Special damages must be specifically pleaded and strictly proved with evidence of earnings such as receipts or pay slips.

Court orders

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  1. 1.Award of a global sum of Kshs 1,000,000.00 general damages for malicious prosecution to the 1st plaintiff
  2. 2.Dismissal of the claim for special damages of Kshs 516,594,827
Jurisdiction invoked
Original civil jurisdiction of the High Court in a claim in tort for malicious prosecution against the Attorney General on behalf of the Kenya Police Service

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, "Joseck Simiyu Prichani v Attorney General, Ibrahim Nyongesa & David Wasilwa", Case Analysis (2020). . Source: 

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