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MagistratePartially AllowedCivil Suit No E005 of 2023· [2024] KEMC 183 (KLR)

Kiratu v Inspector General & 3 others (Civil Suit E005 of 2023) [2024] KEMC 183 (KLR)

Resident Magistrate's Court at Lamu
18 September 2024
4,843 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~19 min to read original · ~4 min brief

The bottom line

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A Kenyan court awarded a wrongfully prosecuted man Kshs 1.5 million against police and prosecutors, but shielded the citizen who reported the crime.

What this practically means

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Executive summary

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By a plaint dated 28th March 2023 the plaintiff, who had been acquitted in Lamu MC CR No. E107 of 2022 (Republic v Samuel Mwangi Kiratu) on charges of an unnatural offence contrary to section 162(b) and preparation to commit a felony contrary to section 308(3) of the Penal Code, sued four defendants for malicious arrest, confinement and prosecution, exemplary damages, defamation damages and damages for loss of future expectations. The court framed four issues: whether the tort was proved, joint and several liability, quantum, and costs. Applying the conjunctive elements of malicious prosecution drawn from Daniel Njuguna Muchiri, Stephen Gachau Githaiga and Kagane v Attorney General, the court found the prosecution was instituted by the police and affirmed by the prosecutor without reasonable and probable cause, since there was no eyewitness and the examining doctor could not exclude other causes of the goat's condition; absence of reasonable and probable cause portrayed malice. The acquittal under section 215 of the Criminal Procedure Code satisfied termination in the plaintiff's favour. However, the 4th defendant, a complainant who had merely reported the suspected offence, bore no liability, public policy protecting good-faith complainants. Liability was entered jointly and severally against the 1st, 2nd and 3rd defendants. General damages of Kshs 1,000,000/= and exemplary damages of Kshs 500,000/= were awarded, with costs and interests from the date of judgment. The defamation claim failed for want of specific pleading under Order 2 rule 7(1) and duplicity, and the loss of future expectations claim failed for want of proof.

Key legal issues

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01

Elements of malicious prosecution

Holding

All four elements - institution of proceedings by the defendant, absence of reasonable and probable cause, malice, and termination in the plaintiff's favour - were made out against the 1st, 2nd and 3rd defendants.

Reasoning

The court adopted the classic formulation from Odunga's Digest and Bullen & Leake, requiring the ingredients to be proved conjunctively. It found the proceedings were instituted by police and prosecuted by the 2nd defendant; the criminal case was terminated in the plaintiff's favour by acquittal under section 215 of the Criminal Procedure Code; and absence of an eyewitness and doubts over the medical evidence meant there was no reasonable and probable cause, which in turn portrayed malice.

p. 3
02

Absence of reasonable and probable cause

Holding

Given there was no eyewitness and the examining doctor could not rule out other causes of the goat's swelling, the prosecution was instituted without reasonable and probable cause.

Reasoning

Applying the objective test from Kagane v Attorney General as quoted in Stephen Gachau Githaiga, the court held that the totality of the material known to the prosecutor could not satisfy an ordinary prudent and cautious man that the plaintiff was probably guilty. Police investigations were shoddy and the ODPP failed in its gatekeeping role under the Decision to Charge guidelines, so pressing charges amounted to acting without reasonable and probable cause.

p. 4
03

Liability of the complainant (4th defendant)

Holding

The 4th defendant was not liable; she had a constitutional right to report a suspected crime and did not dictate the charges.

Reasoning

Relying on Catherine Wanjiku Kariuki and Douglas Odhiambo Apel, the court held that a citizen's civic duty to report crime is protected by public policy, and once a complaint is made it is for the police to investigate and decide whether to charge. Shoddy police investigations do not remove the complainant's reasonable and probable cause. Liability therefore attached only to the 1st, 2nd and 3rd defendants jointly and severally.

p. 8
04

Quantum

Holding

General damages of Kshs 1,000,000/= and exemplary damages of Kshs 500,000/= awarded; defamation and loss of future expectation claims dismissed.

Reasoning

Guided by Peter M. Kariuki v Attorney General and the Madan JA dictum that awards should be reasonable, not miserly nor extravagant, the court adopted the Kshs 1,000,000/= figure the plaintiff pleaded, drawing support from Daniel Waweru Njoroge and Syed Qmar. Exemplary damages of Kshs 500,000/= followed Chrispine Otieno Caleb. The defamation claim failed for want of specific pleading and duplicity.

p. 9

Legal principles established

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  • The ingredients of malicious prosecution must be conjunctively proved.
  • Once a complainant reports to police, it is the duty of police and investigative agencies to conduct proper investigations and present a water-tight case; not every reported case should be presented to court.
  • Malicious prosecution claims are not instituted against a complainant who merely gave information to the police; the proper defendant is the prosecuting authority.

Court orders

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  1. 1.General damages for malicious prosecution of Kshs 1,000,000/= awarded against the 1st, 2nd and 3rd defendants jointly and severally.
  2. 2.Exemplary damages for malicious prosecution of Kshs 500,000/= awarded against the 1st, 2nd and 3rd defendants jointly and severally.
  3. 3.The claim for general damages for defamation dismissed in toto.
  4. 4.The claim for general damages for loss of future expectation dismissed for want of proof.
  5. 5.The plaintiff awarded costs and interests from the date of the judgment.
  6. 6.All other prayers not specifically granted dismissed.

Authorities

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Legislation

  • Penal Codesection 162(b)
  • Penal Codesection 308(3)
  • Evidence Actsection 124
  • Criminal Procedure Codesection 215
  • Civil Procedure Rules 2010Order 2 rule 7(1)

Cases cited (20)

  • Daniel Njuguna Muchiri V Barclays Bank Of Kenya Ltd & Another
    [2016] eKLR
  • Stephen Gachau Githaiga & Another V Attorney General
    [2015] eKLR
  • Kagane – vs- Attorney General
    (1969) EA 643
  • Hicks vs. Faulkner
    [1878] 8 QBD 167
  • Herniman vs. Smith
    [1938] AC 305
  • Glinski vs. McIver
    [1962] AC 726
  • Thomas Mboya Oluoch & Another v Lucy Muthoni Stephen & Another
    Nairobi HCCC No. 1729 of 2001
  • Catherine Wanjiku Kariuki vs. Attorney- General & Another
    [2011] eKLR
  • Douglas Odhiambo Apel & another v Telkom Kenya Limited
    Civil Appeal no 115 of 2006
  • Robert Okeri Ombeka v Central Bank of Kenya
  • Beckenstrater V Roficher & Theunissen
    1955 1 SA 129 (A) 135D-E
  • Relyant Trading (pty) Ltd V Shongwe
    2007 1 All SA 375 (SCA) para 14
  • Daniel Waweru Njoroge and 17 others vs Attorney General
    [2015] eKLR
  • aqvi Syed Qmar vs Paramount Bank Limited & another
    [2015] eKLR
  • Chrispine Otieno Caleb vs Attorney General
    [2014] eKLR
  • Peter M. Kariuki v Attorney General
    [2014] eKLR
  • Cuossens v Attorney General
    (1999)1 EA 40
  • Byrum Kenneth Olenja versus Michael Opundo & Another
    (2011) eKLR, Nairobi HCCA No. 230 of 2000
  • Cosmas M Nzau & 2 others v The Honourable Attorney General
    Nairobi high court civil suit No.714 of 2000
  • Vastu Company Limited v Mwangi
    (Civil Appeal 547 of 2019)[2022] KEHC 3006 (KLR)
Jurisdiction invoked
Original civil jurisdiction in tort (plaint dated 28th March 2023); no specific constitutional or statutory jurisdictional provision invoked

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, "Kiratu v Inspector General & 3 others (Civil Suit E005 of 2023) [2024] KEMC 183 (KLR)", Case Analysis (2024). Civil Suit No E005 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2024/183/eng@2024-09-18

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