Malicious prosecution

By tloUncategorized

Malicious prosecution

 

This opinion addresses the key aspects of the tort of malicious prosecution specifically focusing on its essential elements, the types of damages recoverable, and the potential liability of the complainant alongside state entities.

 

In the case of Stephen Gachau Githaiga Versus Margaret Wambui Weru & Attorney General (Civil Appeal No. 27 Of 2014), the court defined malicious prosecution as an intentional tort that provides redress for losses suffered due to unsuccessful and malicious legal proceedings initiated without lawful reasonable or probable cause.

 

  1. Ingredients to prove malicious prosecution

 

In Attorney General v Peter Kirimi Mbogo another 2021KEHC5902(KLR), the court noted that to succeed in a claim for malicious prosecution, the plaintiff must prove four essential elements:

  1. The criminal proceedings were instituted by the defendant, or by someone for whose acts they are responsible.
  2. The prosecution terminated in the plaintiff’s favour:- If the proceedings were brought to a legal end and the plaintiff was acquitted, this element is satisfied.
  3. The prosecution was instituted without reasonable and/or probable cause: – The determination of reasonable and probable cause is primarily judged on an objective test, considering the totality of the material known to the prosecutor at the time of institution. If a reasonable, prudent, and cautious man would not have been satisfied that there was a proper case to put before the court, then absence of reasonable and probable cause is established.

A subjective test, focusing on whether the prosecutor genuinely believed in the probable guilt, is applied only if there is direct evidence suggesting such lack of belief.

  1. The defendant must have been actuated by malice: – Malice means acting with an improper and wrongful motive, using the legal process for a purpose other than its legally appointed and appropriate purpose.

Malice can be inferred from the lack of reasonable and probable cause. It can also be inferred from the manner in which the arrest or complained-of act was handled. The mere fact of acquittal does not necessarily connote malice.

The court further stated that:

“Instructively, the five elements apply conjunctively and all five must be present in order to successfully sustain a claim for damages for malicious prosecution.”

 

  1. Damages to be awarded

 

Damages recoverable are intended to compensate the plaintiff for a tarnished reputation, indignity, humiliation, injury to feelings, and possibly serving a sentence. They include:

  1. General Damages: These are awarded to compensate for the loss suffered, such as tarnished reputation, humiliation, indignity, and injury to feelings.

Factors considered include the plaintiff’s status in society and the circumstances of the arrest, detention, and prosecution. For instance in the case of Attorney General v Peter Kirimi Mbogo (supra), the court considered that the plaintiff was an Advocate renown in the region and the spectacle of his arrest, detention and prosecution the subject hereof was conducted in utterly degrading set of circumstances and in full glare of members of the public, some of them who were his clients, friends and acquaintances.

The assessment of general damages is within the discretion of the trial court.

  1. Punitive damages: awarded but are given when general damages are insufficient to compensate the aggrieved party. They are appropriate in two circumstances – Attorney General v Peter Kirimi Mbogo (supra):

 

  1. Where there is oppressive, arbitrary, or unconstitutional action by government servants.
  2. Where the defendant’s action was calculated to procure a benefit (not necessarily financial) at the plaintiff’s expense.
  1. Special damages: which must be specifically pleaded.

Examples:

In Attorney General v Peter Kirimi Mbogo, the trial court initially awarded a total of Ksh 7,700,000/= for malicious prosecution, unlawful arrest, and false imprisonment, which included Kshs. 500,000/= for general damages for malicious prosecution and Kshs. 5,000,000/= for punitive damages for malicious prosecution. The appellate court found the punitive awards excessive compared to other cases and reduced the total award to Ksh 2,700,000/= by substituting the punitive damage awards.

In Krystalline Salt Limited v Ngolo 6 others 2023 eKLR, the trial court awarded Kshs. 150,000/= in general damages to each of 7 plaintiffs, totaling Kshs. 1,050,000/=. The appellate court, however, set aside these awards because most plaintiffs did not testify or prove injury. The court noted that Kshs. 50,000/= assessed for one person (who testified but wasn’t a proper plaintiff) was “modest” and “proper” had they sued and succeeded.

In Stephen Gachau Githaiga v Attorney General, the trial court awarded Ksh. 300,000/= in general damages. The appellate court upheld this award, finding no reason to interfere.

 

  1. Whether a complainant can be found culpable of malicious prosecution alongside the state.

 

The answer to this question is in the affirmative, however, it is not automatic. To further break it down, I will answer it as follows:

  1. General principle: Once a complaint is made, it is the responsibility of the police to investigate the matter, and that of the Director of Public Prosecutions (DPP) to make an independent decision on whether or not to prosecute. In the case of Susan Mutheu Muia v Joseph Makau Mutua the court cited with approval the case of Douglas Odhiambo Apel & Anor –Vs- Telcom Kenya & Attorney General HCCC 2547 OF 1998 where the court held that in a claim for unlawful arrest, false imprisonment and malicious prosecution, the proper defendant is always the Attorney General (now the DPP).
  2. When a Complainant Can Be Liable: Liability for malicious prosecution, as aforementioned, requires the plaintiff to prove, among other elements, that the prosecution was initiated by the defendant (formerly complainant).

In Stephen Gachau Githaiga v Attorney General, the court held that a complainant can be held liable if they were instrumental in setting the law in motion without reasonable or probable cause and were actuated by malice.

  1. The Role of the Prosecutor and Collusion: In the case of Susan Mutheu Muia v Joseph Makau Mutua the court held that:

“It must always be remembered that the element of malice is material on the part of the prosecutor and not the complainant unless there is collusion between the two. See MUSIC COPYRIGHT SOCIETY OF KENYA –VS- TOM ODHIAMBO OGOWL [2014] eKLR”.

  1. Effect of a “Case to Answer” Finding: The Krystalline Salt Limited case strongly argues that if the criminal court found the accused had a case to answer (meaning a prima facie case was established), this signifies the existence of probable cause and where there is a finding of a case to answer, there cannot be malicious prosecution.This finding was central to that court’s decision to dismiss the claim against the complainant.

 

Conflicting Outcomes

 

In Susan Mutheu Muia, the trial court found the complainant liable but exonerated the Attorney General. The appellate court, however, allowed the appeal by the complainant, finding the trial magistrate erred by holding the complainant liable after absolving the police/prosecutor and finding no collusion. This suggests the appellate court favored the view that without fault on the prosecutor’s part (or collusion), the complainant is not liable in a public prosecution.