Moses Obwanga & 1 other v The Hon. Attorney General & 2 others

contrary to section 279 (c) of the Penal Code in Mombasa CM Criminal Case No. 238 of 2018. 3. The appellant, further, stated that he suffered considerable mental anguish and bodily pain and he was put in considerate trouble, convenience, anxiety, stress and expenses and that his future employment prospects have been adversely affected by the defendant’s malicious acts of commission and/or omission and as a result which he has suffered loss and damage. Based on the aforesaid claims, the appellant sought for the following reliefs: i. A declaration that the prosecution of the appellant by and/or at the behest of the respondents in Mombasa Criminal Case No. 238 of2018 was malicious and without basis. ii. General damages for false and wrongful detention and or arrest, for malicious prosecution and abuse of judicial process as well as for pain, suffering and loss of amenities. iii. Special damages of Ksh. 150,000 being costs incurred by the appellant during the trial process. 4. iv. Aggerated damages. v. Exemplary damages. vi. Costs of this suit. In response, the 1st and 2nd respondents filed a statement of defence dated 19th February, 2021 denying the appellants claims. The 1st and 2nd averred that if the plaintiff was arrested and prosecuted, which they deny, the decision to arrest and prosecute were arrived at after a complaint was lodged and investigations led to a CIVIL APPEAL NO. E064 OF 2024 JUDGEMENT (Moses Obwanga -vs- The Hon. Attorney General & Others) 2|Page

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conclusion that there was reasonable grounds to believe an offence had been committed. The 1st and 2nd respondents also denied the particulars of malice and loss alleged by the appellant. 5. On its part, the 3rd defendant filed a defence dated 15th February 2023 denying the plaintiff’s claims. defendant The 3 rd also averred it filed a criminal complaint against the appellant in good faith. 6. The learned trial magistrate in his judgement held that an acquittal in a criminal case can not serve as fiat accompli in the success of subsequent civil litigation in an action for damages over failed prosecution. In this regard the court found that the appellant did not prove his claim on a balance of probabilities and dismissed it with costs. 7. Being dissatisfied with judgement of the trial court, the appellant preferred this appeal. The appeal is based on the following grounds: a) That the learned trial magistrate erred in law and fact by failing to consider or cursorily considering the evidence advanced by the appellant and submission by the appellant thereby arriving at a wrong decision. b) The trial magistrate erred in law and fact by failing to consider the ingredients required to establish the tort of malicious prosecution and instead considered extraneous matters. c) That the trial magistrate erred in law and fact in finding the appellant failed to expound his innocence on the allegation of theft and therefore placing a higher onus of beyond reasonable doubt rather that CIVIL APPEAL NO. E064 OF 2024 JUDGEMENT (Moses Obwanga -vs- The Hon. Attorney General & Others) 3|Page

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that of balance of probabilities required in civil causes. d) That the trial magistrate erred in law and fact by making an implied assumption that the prosecution case would have succeeded had the investigating officer testified and produced the exhibits. 8. The appellant adopted his witness statement dated 12th April, 2021 as his evidence- in-chief. In the statement the appellant basically reiterated the claims in his plaint. He also produced his charge sheet (P. Exhibit No. 1), proceedings in Mombasa Criminal Case No. 238 of 2018 and ruling dated 20/2/2020 (P. Exhibit 2) and Notice to the Attorney General dated 19th May, 2020 (P. Exhibit 3). 9. On cross-examination, by counsel for the 1st and 2nd respondents, the appellant stated David Kamau reported the criminal complaint against him to the police. He also stated the police who arrested him were not known to him prior to the event. The appellant, further, stated that he had not shown any receipts or fee note of the fees he paid to his advocates. 10. On cross-examination by Mr. Matubia for 3rd respondent, the appellant stated that he worked for Console Base Limited, a container freight services firm and served as clerk in the said firm which entailed processing documents for freight of containers from port to CFS. He also stated that his role did not entail verification of the contents of the subject containers herein but ended with checking the seals. The appellant, further, stated that he did not recall any seal being tempered with and that the containers Console Base Limited stores with with all the seals intact. CIVIL APPEAL NO. E064 OF 2024 JUDGEMENT (Moses Obwanga -vs- The Hon. Attorney General & Others) 4|Page

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11. PW1 also stated that the police never showed him tempered seal upon his arrest and he is not aware a container was interfered with and bags of rice stolen. 12. On re-examination, PW1 stated that he blames 3rd defendant because it gave false information to the police against him as a result which he suffered blow to his career. 13. PW2, Robert Orenge Onderi, stated the the appellant is his neighbour and that he has known him for about 10 years. PW2 further, stated, the appellant was a pillar of strength in their community who commanded great respect and reverence but now finds himself struggling to fend for his family as he has no job. PW 2 also stated the appellant suffers from loss of reputation and has been subjected to lifelong stigma as a result of being charged in court. 14. On cross-examination by counsel for 1st and 2nd respondent, PW2 stated that he did not know the level of investigation in the case that was against the appellant. He also stated that the plaintiff has suffered public odium and his friends have shunned him. 15. On cross-examination by counsel for 3rd respondent, PW2 stated he was also distrustful of the plaintiff until he was cleared of the offence herein. 16. Mr. David Maina Kamau, the 3rd respondent Operation Manager in charge of clearing and forwarding testified on behalf of the 3rd respondent. On 27th December, 2017, the witness stated, they were retained by Ms. Greenroad Logistics Limited to clear a consignment of 18,000 bags of white rice imported from China and destined for South Sudan through the port of CIVIL APPEAL NO. E064 OF 2024 JUDGEMENT (Moses Obwanga -vs- The Hon. Attorney General & Others) Mombasa. They also 5|Page

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approached Seedvan Transporters Limited to move the rice that was packed in sealed containers from port of Mombasa to Console Base CFS Changamwe for clearing and onward transportation to Juba, South Sudan. 17. On 3rd January 2018, DW1 stated, Seedvan Transporters Limited dispatched truck No. KBP 761 Q/ZC1048 to load container No. ONTU1603549 containing 500 bags of rice from Console Base CFS at Changamwe. The truck was weighed before leaving, DW1 stated, where it was found to have less weight that was expected. A decision was promptly made to verify the cargo, DW1 stated, and it was discovered that 413 bags of 50 kg each were missing and Console Base employees failed to give explanation since subject containers were initially sealed. 18. The matter was reported at Changamwe Police Station DW1 stated, and police officers commenced investigations and concluded that the plaintiff who was an employee of Console Base CFS was culpable with his co-employees. 19. The police preferred charges against the plaintiff and his co-accused, DW1 stated and 3rd defendant availed witnesses during the criminal trial including himself. For reasons not known to them, DW1 stated, the Investigating officer failed to surrender the exhibits and later refused to attend court to testify leading to dismissal of the charge against the plaintiff. 20. The issues of determination by the court in this matter are: 1) Whether the 3rd respondent maliciously and without reasonable or probable cause gave false information CIVIL APPEAL NO. E064 OF 2024 JUDGEMENT (Moses Obwanga -vs- The Hon. Attorney General & Others) 6|Page

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against the appellant at Changamwe Police Station that he stole goods on transit contrary to section 279 (c) of Penal Code. 2) Whether the appellant was wrongfully and unlawfully arrested and detained and subsequently maliciously prosecuted on trumped up charges. 3) Whether the appellant suffered loss and damages and is entitled to the reliefs sought in his plaint. 21. In Selle & Another -vs- Associated Motor Biat Co. Ltd (1968)EA123 the Court of Appeal outlined the duties of the first appellate court as follows: “An Appellate court is not bound necessarily to accept the findings of fact of the court below. An appeal to this court from a trial of the High court is by way of retrial and the principals upon which this court acts in such appeal are well settled. Briefly put, they are that this court must re-consider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it was neither seen nor heard the witnesses and should make due allowance in this respect”. 22. In the case of Murunga -vs- Attorney (1979)KLR 138 the principles for proving malicious prosecution were outlined as as follows: a) That the plaintiff must show that the prosecution was instituted by the defendant or by someone for who acts he is responsible. b) The plaintiff must show that the prosecution terminated in his favour. c) That the plaintiff must show and demonstrate that the prosecution was instituted without reasonable and probable cause. CIVIL APPEAL NO. E064 OF 2024 JUDGEMENT (Moses Obwanga -vs- The Hon. Attorney General & Others) 7|Page

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d) He must also show that the prosecution was activated by malice. 23. It is not in dispute that the applicant was arrested, charged and prosecuted for the offence of Stealing Goods in Transit contrary to section 279(c) of the Penal Code. It is equally not in dispute that the case was terminated in the appellant’s favour under section 210 of the CPC as the prosecution failed to establish a prima facie case against the aappellant. The appellant also pointed out that the investigating officer failed to testify and no exhibits connected to the alleged offence were produced in court connecting him to the alleged theft herein. 24. The appellant counsel submitted that the continuation of criminal proceedings in the absence of sufficient evidence and without the testimony of the investigating officer demonstrates recklessness, improper motive and or malice. 25. On the part of the 3rd respondent that 3rd respondent submitted that being a private person it had no power to compel the investigating officer to attend court or produce exhibits in court. The 3rd respondent also stated it called witnesses who testified on its behalf and that the alleged theft herein occurred within an environment where the appellant and his co-workers operated and therefore, the appellant and his co-workers had an to obligation to explain where the bags of rice went. 26. The 3rd respondent also explained its officer reported the alleged theft to the police who investigated the matter and arrested the appellant and his colleagues. CIVIL APPEAL NO. E064 OF 2024 JUDGEMENT (Moses Obwanga -vs- The Hon. Attorney General & Others) 8|Page

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27. In acquitting the appellant, the trial court in Mombasa CM Criminal case No. 238 of 2018 (M O. Rabera (SRM) noted that no documents were produced to prove the existence of the subject container herein. These included loading slip, Kwatos Report, tracking image, inter change container among other documents mentioned by PW1 and marked but not produced. The criminal court also pointed no witness from the loading company to authenticate that 500 bags were loaded onto the subject container herein. 28. The 1st and 2nd did not call any witnesses. The appellant’s testimony against them was, therefore, not controverted. They did not also file any submission. It is my finding the prosecution of the appellant by the DPP and subsequent failure by the investigating officer to testify and produce the relevant exhibits in the cases was malicious. It also my finding that the 3rd respondent had no control over the investigating officer and was therefore not liable the malicious prosecution of the appellant. Consequently, this appeal is allowed against the 1st and 2nd respondents. 29. Having found the 1st and 2nd respondent liable for malicious prosecution of appellant, the question for determination of damages payable. In the case of Jacob Juma & Another -vs- Commissioner of Police & Another (2013) KEHC 6303 (KLR) the court awarded each of the plaintiffs Kshs.2,000,000 as general and aggravated damages for malicious prosecution. In Attorney General -vs- Peter Kirimi Mbuo & Another (2021) KEHC 5902(KLR) the court awarded the awarded the 1st respondent general damages of Kshs.500,000 for CIVIL APPEAL NO. E064 OF 2024 JUDGEMENT (Moses Obwanga -vs- The Hon. Attorney General & Others) 9|Page

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malicious prosecution and punitive damages for malicious prosecution of Kshs.5,000,000 30. In the trial court the appellant sought to be awarded a global sum of Kshs.3,000,000 for malicious prosecution, unlawful arrest and false imprisonment. This court awards the appellant Kshs.1,500,000 as general damages for only for malicious prosecution proved plus costs of this appeal payable by 1st and 2nd respondents. The court declines to award damages for unlawful arrest and false imprisonment and alleged costs of Kshs.150,000 incurred by the in criminal trial as these claims were not proved. 31. The upshot of my findings above are that: a) The trial court judgement dated 9th February,2024 is set aside b) The appellant is awarded General damages Kshs.1,500,000 for malicious prosecution payable the 1st and 2nd respondent. c) Costs of this appeal against 1st and 2nd respondent. d) Interest on (b) at Court rates from the date of this judgement Dated, signed and delivered online via Microsoft teams this 29th day of July 026 Hon. P. K. Rotich JUDGE In the presence of: Ms. Oloo for the appellant. Muye Mutubia holding brief for Attorney General. CIVIL APPEAL NO. E064 OF 2024 JUDGEMENT (Moses Obwanga -vs- The Hon. Attorney General & Others) 10 | P a g e

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