- The Appellants in Migori Chief Magistrates Court Civil Case No. 102 of 2020 sued George Oluoch Otieno and The Attorney General seeking general damages for unlawful arrest wrongful confinement and malicious prosecution. They also sought aggravated damages against the 1st Defendant on the basis of false and malicious allegations fronted and/or made to the 2nd Defendants as well as mental anguish. They further sought for special damages in the sum of Kshs. 127,000 together with interests at court rates and cost of the suit.
- The suit was heard and determined on 10.1.23 where the trial Magistrate P. N. Areri reached the conclusion that the plaintiffs had not proved all the elements of malicious prosecution conjunctively to support their claim and the suit was therefore dismissed with costs.
- Aggrieved by the judgment of the trial court the Appellants preferred the Appeal herein on the following grounds: -
- The Learned Trial Magistrate erred in law and in fact by failing to properly analyse the evidence on record and find that the key ingredients of the tort of malicious prosecution had been proved on the balance of probabilities.
- The learned Trial Magistrate misdirected himself by failing to evaluate the evidence presented by the Appellants clearly demonstrating that there was no probable cause to prosecute the Applicants of the offence of cutting down trees and in so doing arrived at an erroneous decision.
- The learned trial Magistrate erred in law and in fact by considering extraneous matters not pleaded and arriving at the erroneous decision that the prosecution was not malicious and instituted without reasonable and probable cause against the weight of evidence presented by the Appellants.
- The Judgment of the learned Trial Magistrate is a miscarriage of the justice and an afront to the constitutional right to the Appellants to enjoy protection of law.
- In holding and/or directing that there was no malice on the part of the Respondents, the learned Magistrate disregarded the evidence adduced by the Appellants who adduced evidence that the 2nd Respondent willfully failed to consider vital information and/or statement placed before him by the Appellants in regards to ownership of the property where the trees were allegedly cut.
- The learned Trial Magistrate erred in law and fact by failing to find that the 1st Respondent’s Report and/or complaint to the 2nd Respondent was actuated by malice on the basis that the 1st Respondent was not the registered owner of the suit property where the trees were allegedly cut and that there was a land dispute between the Appellants’ Aunt one Roseline Odera and the 1st Respondent herein over and in respect of the property on which the trees were allegedly cut.
- While the learned Trial Magistrate appreciated and / or discerned the elements to be proved in a claim of malicious prosecution, same misapprehended the facts and evidence in respect of the Criminal Proceedings and thus arrived at an erroneous and unsound decision.
- The learned Trial Magistrate failed to property evaluate, appraise and/or analyse the entire Evidence on record and thereby failed to Decipher the Salient features of the Appellants’ case and thereby arrived at a Conclusion contrary to the weight of Evidence on record.
- The learned trial Magistrate failed to properly evaluate, appraise and/or analyse the submissions and/or Authorities advanced by and/or on behalf of the Appellants and thereby mistook and/or misconceived the crux of the Appellants’ case and hence the learned Trial Magistrate arrived at a slanted Decision and/or Judgment
- The Learned Trial Magistrate erred by making a finding that eth Appellants had failed to proved their case against the Respondents contrary to the evidence presented before him.
- The Appellant’s case was that they were charged in Migori Chief Magistrate Criminal Case No. 300 of 2018 for the offence of malicious damage to the Respondents trees. That after trial they were acquitted under Section 210 of the Criminal Procedure Code on 27.2.2020 for reasons that the evidence of recognition was not proper in the circumstance as it was at night and that the prosecution did not prove that the Appellants willfully and unlawfully cut down trees belonging to the 1st Respondent. The trial magistrate said that the Appellants were arraigned before court simply suspicion alone and therefore no case to answer.
- The Appellants claimed that the 1st Respondent report was malicious as the land from which the trees were cut and which they were tilling belonged to their aunt Roseline Awino Odera and not the first Respondent. That the said 1st Respondent did not see them cutting the trees as the offence was committed at night. They also said they sued the 2nd Respondent because the police did not do investigation the complaint before arresting them. They said that the police did not want to hear their side of the story and neither did the police summon Roseline Awino Odera their aunt and the owner of the parcel of land in question to record her statement.
- The Appellant further testified that Gilbert Ochieng the 4th Appellant and Wycliffe Ouma Obondo were student at the time of arrest, and that the arrest made Wycliffe Ouma Obondo to fail his KCSE examination. That further their arrest destroyed their reputation as they were in the society as they were seen as criminals.
- George Otieno Kochi the 3rd Appellant who testified on behalf of his co- appellants prayed that the court awards them general and special damages together with interest and costs. He said that their aunt Roseline Odera paid their legal fees and stood surety for Wycliffe Obondo and that their liberty was curtailed because they were kept in the cells from Sunday to Monday. The Appellants claimed that George Oluoch instigated their arrest when there was no probable cause to arrest them and that is why they were acquitted.
- This Appeal was canvassed by way of written submissions. The Appellants submissions are dated 11.6.24 and filed on 12.6.24. On the 23.6. 24 the Respondents were granted leave to file their submissions within 14 days. They filed submissions dated 9.9.24 and submitted that the grounds of appeal amount to general grounds which cannot be used to impeach the decision of the trial court. The 1st Respondent relied on the submissions in the trial court dated 5.10.22 which are found in the record of Appeal at page 73-78.
ANALYSIS AND DETERMINATION
- Having considered the grounds of appeal and the submissions filed by advocates for respective parties and having re-analyzed the evidence for both parties in the trial court both in Criminal proceedings and Civil suit as well as the Ruling on case to answer and judgment of the trial magistrate this court finds that it is not in-dispute that the Appellants were charged with the offence of malicious damage to the 1st Respondent’s property. From the evidence by George Otieno Kochi who testified on behalf of other Appellants it is not in-dispute that trees on parcel of land No. Suna East / Wasweta 1/13087 registered in the name of Sharon Atieno the wife of the 1st Respondent were cut. As a consequences of the said damage the 1st Respondent made a report to the police as to the damage occasioned to their trees. It was therefore the duty of the police to investigate as admitted by PW1 and under Article 157 (11) on the Constitution the DPP to recommended that they should be charged for being culpable of committing the alleged crime. Although the Appellants were acquitted under Section210 of the Criminal Procedure Code because no one saw them committing the offence it has not been denied that there was reasonable and probable cause to investigate the complaint by the 1st Respondent and it was only upon the recommendation of the DPP that the Appellants were charged. The 1st Respondent cannot be faulted for the action taken by the Police when there is clear evidence that his property was damaged. This court also finds there was no evidence of malice on the part of the Complainant or the police in preferring charges against the Appellants.
- In the circumstances this court finds no reason to unsettle the decision of the trial court as the Appeal has no merit. The Appeal is dismissed with no orders to costs.
Delivered dated and signed at Migori this 31st day of October, 2024.