Mbuthye Muthui v Ngala Mbiti & 1 other

3. 4. The learned trial magistrate erred in law and fact when he dismissed the appellant evidence and gave much eight to the respondent evidence only. 5. The learned trial magistrate erred in law and fact when he delivered Judgement against the weight of evidence. 6. The learned trial magistrate himself when he based his decision on extraneous matter that not a in issue a misdirection which led her to reach the wrong decision. 7. That the learned trial magistrate erred in law and fact when he demonstrated open biasness when he failed to consider the appellant evidence as strong evidence to counter the respondent evidence. 8. The learned trial magistrate erred in law and fact and misdirected himself on facts when he failed to establish that the respondent failed to prove his case according to evidence on record. 9. The learned trial magistrate erred in law and fact when he failed to find that the respondent has not proved his case on a balance of probabilities. 10. The learned trial magistrate erred in law and fact in arriving at a decision contrary to law and evidence on record. The appellant prays that the appeal be allowed, the Judgment be varied reversed or set aside. The appeal was canvassed by way of written submissions. Submissions 4. The appellant submits that the learned magistrate erred by awarding the respondent what was not pleaded. That the respondent was claiming general damages to the tune of Kshs. 158,000/= as general damages for false prosecution and imprisonment against the respondent and was in the nature of special damages. He submits that the respondent was claiming special damages as opposed to general damages which was not produced in his evidence and he totally failed to prove the two prayers. That the respondent did not prove his claim as required by law against the appellant for malicious prosecution. That the respondent failed to prove the two prayers pleaded on the plaint. That the tort of malicious prosecution is an international tort that provides redness to a party for losses incurred following unsuccessful and malicious proceedings initiated without lawful reasonable and/or probable cause by the defendant. 5. He relies on Secretary Board of Management of Lugulu Mixed and Boarding Primary School, The Attorney General -vs- Kenneth Waswa Mutinda, HC Bungoma Civil Appeal No. E090/2023. The applicant faults the trial magistrate for holding that the prosecution of the respondent in Criminal Case No. 237/2015 was malicious which was not the position. 6. That the appellant demonstrated the circumstances that led to her prosecution which process was justifiable. That the prosecution was not actuated by malice in anyway but was seeking justice after she was wronged by the respondent. He relies on James Karuga Kiuro -vs- Joseph Mwamburi & 3 Others (2001) eKLR where it was held that to prosecute a person is not prima facie tortious but to do so dishonestly and unreasonably is. That the respondent failed to prove a case of malicious prosecution. That the mere fact of acquittal was not sufficient ground to succeed in a suit for malicious prosecution. The respondent did not prove malice on the part of the appellant. 7. He relies on Magaret Ndege & 3 Others -vs- Moses Oduor Ademba (2021) eKLR. That the appellant was not the investigator or the prosecutor and that all it did was to provide witnesses. Refers to Douglas https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19572/eng@2025-12-15 2

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Odhiambo Apel -vs- Telcom Kenya Ltd & Attorney General which quoted John Munene Maina -vsPeter Murage Kamanja (2019) eKLR. On whether the prosecution was actuated by malice, he relies on Nzoia Sugar Company Limited -vs- Fungututi (1988) KLR CA where it was stated that acquittal parse is not sufficient ground for malicious prosecution. Spite or ill will must be proved against the prosecutor. 8. He further relies on Hicks -vs- Faulkner (1878) QBD 167 at 171. He further relies on Kagame & Others -vs- The Attorney General & Another (1969) EA. It is submitted that there was no basis for assessment of damages. That the respondent did not prove her claim on a balance of probabilities as required under the law. Respondent’s Submissions 9. The 1st respondent relies on the following case law: 1. Dr. Willy Kaberuka -vs- Attorney General Kampala HCC S No. 160/1993 2. R -vs- Attorney General Ex Parte Kipngeno Arap Ngeny High Court Civil Application No. 406/2001 3. Mbowa -vs- East Mengo District Administration (1972) EA 351 10. It is submitted that the appellant was to blame for not providing the prosecution with the necessary evidence to prosecute its case. That the action of the appellant led to his unlawful arrest, confinement and subsequent arraignment in court. On the elements of malicious prosecution, it is submitted that they were set out in the case of Mbowa -vs- East Mengo District Administration (1972) EA 352 which the 1st respondent met against the 1st respondent. That the appellant acted by malice is leading the agents of the 2nd respondent in arresting the 1st respondent without any sufficient reasons. That malice need not only be seen in plain sight but it can also be expressed or gathered from the surrounding circumstances as held in R -vs- Attorney General ex-parte Kipngeno Arap Ngeny (supra). That the appellant reported the matter to the police without sufficient evidence for the charges preferred. 11. That the police acted on the report without conducting thorough investigations and charged the 1st respondent. That general damages for malicious prosecution refer to compensation awarded to a plaintiff for the harm suffered due to malicious prosecution including injury to reputation, mental distress and economic losses which the law presumes to arise from such an action. That the 1st respondent suffered mental distress and economic losses as he had to travel to court for the Criminal case and that he was arrested for something for which he claimed innocence and caused him distress. He relies on the case of Dr. Willy Kaberuka -vs- Attorney General (supra). The 1st respondent prays that the appeal be dismissed. Analysis and Determination 12. I have considered the grounds of appeal on the memorandum of appeal, the proceedings before the learned magistrate and the submissions. The issues for determination are whether the respondent discharged the burden of proof of malicious prosecution. Whether the respondent was entitled to general damages. This being a first appeal I am alive to the duties of this court as stated in decisions of this court and the Court of Appeal. In Mwangi -vs- Wambugu (1984) KLR 453: “ A court of Appeal will not normally interfere with a finding of fact by the trial court unless such finding is based on no evidence or on a misrepresentation of the evidence or the Judge is shown demonstrably to have acted on wrong principles in reaching the fining; and an https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19572/eng@2025-12-15 3

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appellate court is not bound to accept the trial Judge’s finding of fact if it appears either that he has clearly failed on some material point to take account of particular circumstances or probabilities material to an estimate of evidence or if the impression based on the demeanor of a witness is inconsistent with evidence in the case generally.” 13. The evidence adduced before the trial court was in his witness statement which he adopted as his evidence in chief it states that on 29/8/2015 two police from Ngaie Police Post accompanied by the appellant went and told him that they wanted to arrest him. They handcuffed him. They asked the appellant where the child was and she said the child was at home. The appellant was told to go for her daughter and they all went to the Police Post. The child said the respondent had told her she had not met a man and would meet with him that day. The officer asked him whether the allegation was fine and he denied as it is the child who wanted to take hardcore stones which were in his homestead by force and she was prevented from doing so. 14. The officers told him to admit but he denied. He was taken to Kyuso Police Station where he spent two nights. He following day he was taken to Kyuso Principal Magistrate’s court where he was discussed of assaulting the 1st defendant’s daughter. He denied the charge by pleading not guilty. He was released on a cash bail of Kshs. 5,000/= the matter proceeded but was later withdrawn and he was released. He spent Kshs. 158,000/= in the Criminal Case No. 237/2015 by having an advocate, transport and subsistence.PW2 was the respondent’s wife who confirmed the evidence of the 1st respondent. The 1st respondent produced evidence to proof that he was charged in Criminal Case No. 237/2015. 15. The law on malicious prosecution has been discussed and the principles laid down. In West Nile District Administration -vs- Dritto (1969) EA 324 it was held that a person instituting legal proceedings for malicious prosecution must prove that: a. That the police were agents of the defendants (in case where the age is sued solely. b. That the police acted without reasonable and probable cause. c. That the police acted maliciously. d. That the proceedings terminated in favour of the plaintiff. 16. These principles were stated in Mbowa -vs- Mengo Administration (1972) EA 352 by the East Africa Court of Appeal. It is well settled following a line of authorities that in a claim of malicious prosecution, malice must be proved to show that the prosecution is actuated by malice, spite or ill will or by indirect or improper motives. The question that the court has to answer is whether the evidence tendered was sufficient to prove that the appellant was actuated by malice or ill will. 17. The Judgment of the learned magistrate in the Criminal Case observed that: “ There is definitely more to this whole story than meets the eye and I particularly doubt that the accused chased away the complainant with a stick for no reason at all. There must have been a cause of the lash which this court was not told. She was very economical with the truth, her witness, the only independent eye witness in his case testified that the accused told him that the complainant insulted him.” “…the doubt definitely works in favour of the accused. I therefore find that the prosecution failed to prove their case against the accused to the required standard of beyond any reasonable doubts.” https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19572/eng@2025-12-15 4

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18. I understand that the learned Magistrate did not mint words, she had no doubt in her mind that the respondent who was the complainant did not tell the truth in court. I find that he respondent had no reason to report the complainant to the police and therefore her actions were actuated by malice, spite and ill will. The 1st respondent testified that he was arrested by policemen and detained at the police station for two days. He was taken through the trial process and at the end of it the trial terminated in his favour. The 1st respondent discharged the burden that there was lack of probable and reasonable cause in the complaint made by the appellant. In R -v- Attorney General Ex Parte Kipngeno Arap Ngeny (supra) the court stated that: “ A criminal prosecution which is commenced in the absence of proper factual foundation or basis is always suspect for ulterior motive or improper purpose. Before instituting criminal proceedings, there must be in existence material evidence on which the prosecution can say with certainty that they have a presentable case. A prudent and cautious prosecutor must be able to demonstrate that he has a reasonable and probable cause for mounting a criminal prosecution, otherwise the prosecution will be malicious and actionable.” 19. The courts will flown at a prosecutions whose motive is to settle scores or vindictiveness and should be stopped for being contrary to public policy and public interest, prosecutors should act independently and only prefer charges where there is sufficient and reasonable material to base the prosecution and not act at the whims of parties out to abuse the criminal justice system. 20. In this appeal the appellant has not discharged the burden to prove that the respondent did not discharge the burden of proof that he was entitled to the prayers pleaded in the plaint. The finding by the learned magistrate that the prosecution of the respondent was malicious is clearly borne out by the evidence which I have analyzed in this judgment. The contention by the 1st respondent that the prosecution was malicious is sound as it is in line with the Judgment of the learned magistrate. 21. The contention that the 1st respondent was claiming expenses for attending court and not general damages is not borne out by the record. The prayers in the plaint were for Kshs. 158,000/= general damages for false imprisonment and malicious prosecution. The contention by the appellant is not supported by the plaint that is on record. The appellant has not challenged the award of damages. There is nothing to prove that the learned magistrate was biased. There was sufficient evidence on which the learned magistrate based his finding. The evidence was sufficient to prove the claims on a balance of probability which is the standard of proof in civil cases. 22. The learned counsel for the appellant submits that the learned magistrate erred by awarding general damages. The judgment of the learned magistrate is that the 1st respondent did not prove the claim for Kshs. 158,000/= which was in the nature of special damages which were pleaded but not proved. Since the 1st respondent had claimed general damages, the awarded of general damages cannot be faulted. It is also trite law that the award of general damages is an exercise of judicial discretion which is exercised judiciously. An appellate court will not normally interfere with the exercise of discretion unless it is shown that the discretion has not been exercised judicially. 23. In Mbogo -vs- Shah (1968) EA 93 it was held as follows: “ An appellate court will interfere if the exercise of discretion is clearly wrong because the Judge has misdirected himself and acted on matters which it should not have acted upon or failed to take into consideration matters which it should have taken into consideration matters and in doing so arrived at a wrong conclusion.” https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19572/eng@2025-12-15 5

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24. There is nothing to show that the learned magistrate misdirected himself or acted on matters which he should not have acted on. I find no reason to interfere with the exercise of the discretion by the learned magistrate in awarding the quantum of damages. It is trite law that costs fall the event and they are awarded at the discretion of the court. For these reasons, I find that this appeal is without merits and is dismissed with costs. DATED, SIGNED AND DELIVERED AT KITUI THIS 15TH DAY OF DECEMBER 2025 HON. LADY JUSTICE L. GITARI JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19572/eng@2025-12-15 6

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