Kiratu v Inspector General & 3 others (Civil Suit E005 of 2023) [2024] KEMC 183 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Elements of malicious prosecution
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.
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.
Absence of reasonable and probable cause
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.
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.
Liability of the complainant (4th defendant)
The 4th defendant was not liable; she had a constitutional right to report a suspected crime and did not dictate the charges.
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.
Quantum
General damages of Kshs 1,000,000/= and exemplary damages of Kshs 500,000/= awarded; defamation and loss of future expectation claims dismissed.
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.
Legal principles established
#- 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
#- 1.General damages for malicious prosecution of Kshs 1,000,000/= awarded against the 1st, 2nd and 3rd defendants jointly and severally.
- 2.Exemplary damages for malicious prosecution of Kshs 500,000/= awarded against the 1st, 2nd and 3rd defendants jointly and severally.
- 3.The claim for general damages for defamation dismissed in toto.
- 4.The claim for general damages for loss of future expectation dismissed for want of proof.
- 5.The plaintiff awarded costs and interests from the date of the judgment.
- 6.All other prayers not specifically granted dismissed.
- Jurisdiction invoked
- Original civil jurisdiction in tort (plaint dated 28th March 2023); no specific constitutional or statutory jurisdictional provision invoked
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.