Background
1.The plaintiff (hereinafter the appellant) instituted his primary suit seeking a plethora of damages for alleged slander, trespass, unlawful arrest and confinement, intimidation and coercion, and a refund of money extorted from him, as against the defendants.
2.It is alleged that in the year 1999 when the Appellant, then an Advocate of the High Court of Kenya working in the firm of Keshar Shiani Advocates was alleged to have had conduct of the 2nd Respondent’s compensatory claim against Stallion Insurance Company, Milimani RMCC No. 3187 of 1997 as a result of personal injuries sustained by the 2nd Respondent following a road traffic accident. The 2nd Respondent contended that the Appellant had the conduct of her matter to the point of settlement and receipt of her funds but declined to release the money owed to her.
3.The 2nd Respondent, allegedly stormed into the Appellant's office at Rattensi Educational Centre on 01/10/2003 in the company of 3rd and 4th Respondents causing a fracas. The Appellant called in the office building security and reported to the Central Police Station which led to the arrest of the 2nd, 3rd and 4th Respondents but were peculiarly released without charges.
4.On the 30.11.2003 the appellant was unprofessionally and unethically arrested on alleged theft of the 2nd respondent’s monies and was detained for 9 hours which acts damning on his reputation, as an advocate of the High Court, by positioning him as a thief and a dishonest and fraudulent person.
5.The 2nd respondent in its defence stated that she lodged a complaint with the Police against the Appellant, over the theft of her money. The Police having evaluated the statements tendered by Appellant and the Respondents including the statements of their potential witnesses (Appellant’s Secretary and Security Guard) deduced that indeed an offence had been committed by the Appellant hence arrests and confined the Appellant, albeit for 9 hours. It is then that the Appellant entered into an agreement for a partial refund of the 2nd Respondent’s settlement amount in the sum of Kshs. 150,000/=, and an undertaking in writing, to refund 2nd Respondent’s dues, which reason he was released.
6.During trial the appellant testified as PW1 whilst the 2nd respondent as DW1; where as for the 3rd and 4th respondents, interlocutory judgment had long been entered on 9th August, 2005.
7.Upon hearing the parties’ cases and considering the evidence thereto, the trial court delivered a ruling dated 30th April, 2010 dismissing the suit with costs. Its reasoning was as follows;
“To succeed in a claim of unlawful arrest the plaintiff must establish that the arrest was unlawful and without basis, and/or was actuated by malice. In the present suit there was a complaint made to the police by 2nd defendant about not having been paid her money. This is the sum later paid to her. Does the payment by plaintiff to 2nd defendant amount to admission of that he owed her the sum? I am of the view that even if it was not so, it goes to show that the claim was not without basis. I therefore find that the arrest of the plaintiff by police, ...to be unlawful or actuated by malice.
Having found that the arrest was lawful and not actuated by malice, the plaintiff’s claim in this aspect, fails. As the other complaint flow from this, I find that the same also fails.”
8.Being aggrieved by the Judgment the appellant instituted the instant appeal on the following grounds;
I.THAT the learned Honourable chief magistrate gravely erred in law in failing to distinguish a payment made by cheque to a firm vis-a-vis the establishment of liability against an individual who was not the registered proprietor or partner in the firm, the very basis of the allegations.
II.THAT the learned Honourable chief magistrate gravely erred in fact and law in failing to resolve a crucial point raised in the pleadings and in the submissions that the police force is amongst other statutory functional and statutory duty to satisfy itself as to the authenticity or otherwise of allegations made against an individual before proceeding to effect an arrest of such individual, the cardinal principle of being heard before condemnation.
III.The learned Honourable Chief magistrate gravely erred in law in adopting pleadings tendered by the 1st and 2nd respondents as a basis for dismissal of the plaintiff’s case when pleadings do not amount to evidence.
IV.The learned Honourable chief magistrate gravely erred in fact and law in failing to comprehend the totality of the appellant’s case which was the high handedness and unreasonable approach in dealing with the appellant on the matter in issue amongst other issues and in particular failure to carry out any investigations before humiliating the appellant.
V.The learned Honourable Chief Magistrate erred in fact and in la in failing to address grave issue raised by the appellant which was that a payment by cheque is ordinarily paid into an account with some signatory and that a professional police force was expected to investigate where such cheque was deposited and who was the signatory to such an account and who lifted the deposits for such payment by cheque when the appellant contended that he was not the payee in the subject cheques, the very basis of the appellant’s arrest, false imprisonment and humiliation.
VI.The learned Honourable Chief Magistrate faced with a serious issue as to the liability of the appellant to pay the sum of kshs.150,000/= paid to a firm by cheque, a firm in which the appellant was neither a partner nor the proprietor thereof erred in purporting to resolve the issue by holding that it went to establish that the 2nd respondent’s claim had a basis.
VII.The learned Honourable chief magistrate faced with a serious issue as to the liability of the appellant to pay the sum of kshs.150,000/= paid to a firm by cheque, a firm in which the appellant was neither a partner nor the proprietor thereof erred in purporting to resolve the issue by holding that it went to establish that the 2nd respondent’s claim had a basis.
VIII.The learned Honourable chief magistrate failed to resolve a grave issue which was that the 2nd respondent had by statements made to the police alleged amongst other things that she instructed the plaintiff as the owner of Keshar Shiani Advocates in 1991 and that the appellant filed her case in court in 1997 and that the appellant conducted a hearing of the case in February, 1998 matters which the appellant denied and termed as malicious and false the very basis of the appellant case against the respondents and in view of the appellant’s evidence that he was admitted on 12th March, 1998 as an advocate of the High Court of Kenya.
IX.The learned Honourable Chief magistrate erred in law in failing to address his mind-to-the effect of the entry of interlocutory judgment against the 3rd and 4th respondents, which entry of the interlocutory judgment established liability against the 3rd and 4th respondents and that the hearing against the 1st and 2nd respondents was a formal proof hearing for assessment of damages against the 3rd and 4th respondents.
X.The learned chief magistrate gravely erred in fact and in law in failing to address his mind to the effect of the failure on the part of the 1st respondent to adduce evidence and further failed to address the submissions by the appellant on the 2nd respondent’s deceitful evidence that was a total departure from her written and signed statement tendered to the police, which statement was tendered in evidence.
XI.The learned chief magistrate failed to address the tenets of the appellant’s case and proceed to address the appellant’s case on the principles set out in a claim for malicious prosecution which was not the issue before the court and in particular the 2nd respondent’s statement to the police.
XII.The learned magistrate erred in law in failing to protect the appellant from the indignity visited on the appellant by the 1st respondent and primarily in ailing to vindicate a country governed by the rule of law seek legal redress against the excesses of executive functionaries.
XIII.The learned magistrate erred by meting out an injustice on the appellant in his judgment when he posited in his judgment the question:
“Does the payment by plaintiff to 2nd defendant amount to admission of the he owed her the sum?”
And answered
“I am of the view that even if it was not so it goes to show that the claim was not without basis” (sic)
The appellant contends that he has never denied that the 2nd respondent had a claim with a basis. It is the appellant’s contention which he sought answers from the court, which was against whom? Was the appellant one and the same person as Keshar Shiani Advocates? A question the court failed to resolve.
XIV.The learned chief magistrate failed in his sacred calling as an impartial umpire to adjudicate and arbitrate over the dispute and alleged injustices meted out on the appellant by those in a position of coercive force and authority, the very reason why parties seek judicial intervention as opposed to jungle law and/or other extra-judicial alternatives.
XV.The learned magistrate gravely erred in law in failing to address all the serious issues raised by the appellant in his submissions and equally failed to address any of the authorities tendered in support of the appellant’s case for whatever their worth.
XVI.The learned magistrate erred in suggesting a possible award of kshs.500,000 without stating what the sum would be for having restrained his judgment to whether or not the arrest was unlawful, and was the kshs.150,000 paid by the appellant part of the kshs.500,000/- had the court found for the appellant.
XVII.The learned magistrate suggested award of kshs.500,000/= was gravely and inordinately low on all the heads of damages sought by the appellant that it amounted to an erroneous estimate calling for this Honourable court to upset it.
XVIII.The learned magistrate gravely erred in fact and in law in making sweeping allegations and findings that the law firm of Keshar Shiani Advocates “closed down as one of the partners went out of the country” when no evidence was placed before the court and when it is trite law a partnership would survive the departure of any partner in that firm and when it is an acknowledged fact that law firms do not just close down but are administered by an appointee from the Law Society of Kenya.
XIX.The learned magistrate gravely erred in fact and law in failing to give meaning to the appellant’s Notice to sue addressed to the 1st respondent and the demand letter addressed to the 2nd respondent soon after payment of the sum of kshs.150,000 to make a finding as to whether or not such notice and demand gave credence to the appellant’s contention that the payment was under duress and undue influence and/or amounted to extortion.
XX.The learned magistrate in appearing to hold that the appellant was liable to pay kshs.150,000 when the 2nd respondent in her statement to the police alleged that the appellant was to deduct a quarter of such a sum meaning the appellant’s purported liability would be kshs.112,500/- and not kshs.150,000 paid to the 2nd respondent in any event.
9.This appeal was canvassed by way of written submissions; by the appellant dated 30th November, 2023, the 1st Respondent dated 20th February, 2024 and the 2nd Respondent dated 22nd February, 2024, which rival arguments, I have carefully analyzed and considered, the authorities cited and the position of law. I hereby determine as hereunder.
Analysis and Determination
10.From the appeal, the main issue as espoused by the appellant in his submissions, arising for determination is hinged on;
Whether or not the appellant was unlawfully arrested and/or detained without probable cause thereby injuring his reputation warranting an award for damages?
11.This being the first Appellate Court, I am required to re-evaluate and analyse evidence adduced before the trial court and arrive at an independent determination. This I do knowing that unlike the trial court, I never got the opportunity to take evidence first hand and observe demeanour of witnesses. In respect to the role of the first Appellate Court, the Court of Appeal in the case of Abok James Odera t/a A. J. Odera & Associates v John Patrick Machira t/a Machira & Co. Advocates (2013) eKLR, held as follows;
“This being a first appeal, we are reminded of our primary role as a first appellate court namely, to re-evaluate, re-assess and reanalyse the extracts on the record and then determine whether the conclusions reached by the learned trial Judge are to stand or not and give reasons either way.”
12.Firstly, I will seek to examine whether the arrest and detention of the Petitioner was done in accordance with the law or whether it amounted to unlawful or false arrest and imprisonment. The law concerned with arrest and detention especially in relation to the instant case can be found in the Criminal Procedure Code as well as the National Police Service Act.
13.Section 29 of the Criminal Procedure Code provides for an arrest without warrant by a police officer in the following terms:
“29. Arrest by police officer without warrant
A police officer may, without an order from a magistrate and without a warrant, arrest—
(a) any person whom he suspects upon reasonable grounds of having committed a cognizable offence;
(b) any person who commits a breach of the peace in his presence;
...
(g) any person whom he finds in a street or public place during the hours of darkness and whom he suspects upon reasonable grounds of being there for an illegal or disorderly purpose, or who is unable to give a satisfactory account of himself;”
The commensurate provision, is under Section 58 of the National Police Service Act gives a police office power to arrest without warrant in these terms:
“58. Power to arrest without a warrant
Subject to Article 49 of the Constitution, a police officer may without a warrant, arrest a person—
...
(c) whom the police officer suspects on reasonable grounds of having
committed a cognizable offence;
(d) who commits a breach of the peace in the presence of the police officer;”
Further, Section 36 of the Criminal Procedure Code as it relates to detention after an arrest without warrant provides:
“36. Detention of persons arrested without warrant
When a person has been taken into custody without a warrant for an offence other than murder, treason, robbery with violence and attempted robbery with violence the officer in charge of the police station to which the person has been brought may in any case and shall, if it does not appear practicable to bring that person before an appropriate subordinate court within twenty-four hours after he has been so taken into custody, inquire into the case, and, unless the offence appears to the officer to be of a serious nature, release the person on his executing a bond, with or without sureties, for a reasonable amount to appear before a subordinate court at a time and place to be named in the bond, but where a person is retained in custody he shall be brought before a subordinate court as soon as practicable:
Provided that an officer in charge of a police station may release a person arrested on suspicion on a charge of committing an offence, when, after due police inquiry, insufficient evidence is, in his opinion, disclosed on which to proceed with the charge.”
14.A determination on whether or not there is false imprisonment is predicated on the circumstances of each case. Therefore, what constitutes a false imprisonment and/or unlawful arrest? In Daniel Waweru Njoroge & 17 Others v Attorney General Civil Appeal No. 89 of 2010 [2015] eKLR the court held:
“False arrest which is a civil wrong consists of an unlawful restraint of an individual’s personal liberty or freedom of movement by another person purporting to act according to the law. The term false arrest is sometimes used interchangeably with the tort of false imprisonment, and a false arrest is one method of committing a false imprisonment. A false arrest must be perpetuated by one who asserts that he or she is acting pursuant to legal authority, whereas a false imprisonment is any unlawful confinement. Thus, where a police officer arrests a person without probable cause or reasonable basis, the officer is said to have committed a tort of false arrest and confinement. Thus, false imprisonment may be defined as an act of the defendant which causes the unlawful confinement of the plaintiff. False imprisonment is an intentional tort.”
15.In Mohamed Feisal& 19 others v Henry Kandie, Chief Inspector of Police, OCS, Ongata Rongai Police Station & 7 others; National Police Service Commission & another (Interested Party) [2018] eKLR the court cited with approval O'hara v Chief Constable of The Royal Ulster Constabulary (1997) A.C. 286 where Lord Hope of Craighead stated at page 14 that:
“The ‘reasonableness’ of the suspicion on which an arrest must be based forms an essential part of the safeguard against arbitrary arrest and detention which is laid down in article 5(1) (c) [section 5(1) (e)]. The court agrees with the Commission and the Government that having a ‘reasonable suspicion’ presupposes the existence of facts or information which would justify an objective observer that the person concerned may have committed the offence. What may be regarded as ‘reasonable’ will however depend upon all the circumstances."
In the O'hara case(supra) it was held by Lord Steyn that:
“Certain general propositions about the powers of constables under a section such as section 12(1) can now be summarized.
(1) In order to have a reasonable suspicion the constable need not have evidence amounting to a prima facie case. Ex hypothesis one is considering a preliminary stage of the investigation and information from an informer or a tip-off from a member of the public may be enough: Hussien v. Chong Fook Kam [1970] A.C. 942, 949.
(2) Hearsay information may therefore afford a constable a reasonable ground to arrest. Such information may come from other officers: Hussien's case, ibid. (3) The information which causes the constable to be suspicious of the individual must be in existence to the knowledge of the police officer at the time he makes the arrest”
16.In Mohamed Feisal & 19 others (supra) the court deduced, which reasoning I agree with, that for the arrest of the appellant to be deemed as lawful, I must find that the arrest was for a cognizable offence and that the Respondents had reasonable grounds to believe the appellant had committed such offence. The court thereto found it necessary to seek out what “probable and reasonable cause” ought to entail. The said court cited with approval the case of Hicks v Faulkner, (1878), 8 Q.B.D. 167 at para 171 Hawkins J. defined probable and reasonable cause as follows:
“Reasonable and probable cause is an honest belief in the guilt of the Accused based upon a full conviction founded upon reasonable grounds of the existence of a state of circumstances, which assuming them to be true, would reasonably lead an ordinary prudent and cautious man placed in the position of the accuser to the conclusion that the person charged was probably guilty of the crime imputed.”
17.Having in length particularised the constituents of unlawful arrest and/or false imprisonment, or lack thereof, I shall weigh the same, to the instant circumstances. The appellant’s claim stemmed from the 2nd respondent’s complaint lodged against the Appellant, over the theft of her money, being a compensatory award against Stallion Insurance Company (“the Insurer”) vide Milimani RMCC No. 3187 of 1997 as a result of personal injuries sustained following a road traffic accident. At the time of prosecution and award of the sum, the Appellant, then an Advocate of the High Court of Kenya was working in the firm of Keshar Shiani Advocates and was alleged to have had conduct of the matter, which compensation was settled and damages paid out by the Insurer through the said firm, but the monies were never relinquished to the 2nd respondent.
18.I have perused the exhibits on record, specifically the police statements of the 2nd, 3rd and 4th respondents, where they detailed, before the police apparatus, that they received communique from Stallion Insurance Company (“the Insurer”). That, in the communique they received copies of cheques drawn by the insurer in favour of Keshan Shiani Advocates for kshs.50,000/= and 100,000/= respectively, and a letter referring to a meeting held between the appellant and the insurer’s assistant manager.
19.In the letter dated 26th May, 2000, addressed to Keshar Shiani Advocates, the insurer’s assistant manager details that he met up with the appellant, and thereby enclosed two cheques totalling to kshs.150,000 and undertook to settle the balance.
20.I have further perused a letter dated 18th November, 2003 addressed to the Provincial Criminal Investigation Officer, by the acting director Kenya Anti-corruption commission, and copied to the director CID, whereby the criminal investigation officer was appraised to undertake investigations on allegations that M/S Kesha Shiani & Co. Advocates failed to remit kshs.286,000 awarded by a court in compensation.
21.It was summarily, the above information that the 2nd respondent relied upon in lodging a complaint with the police whereby the appellant was arrested and detained for somewhat 9 hours. The appellant during trial acknowledged, that he was employed as an associate in the firm Keshar Shiani Advocates, and was involved in the 2nd respondent’s matter, specifically on the payment proposals of the award by the insurer, which he understands part payment was made to the firm. Further, the appellant acknowledged that upon arrest and noting that he was to be charged offered to settle the kshs.150,000, as at the time he worked for the said insurer, and the damage would have been disastrous.
22.It would follow that based on the above information and facts, would the same constitute reasonable and probable cause which would constitute reasonable ground for arrest. I believe so. In my view, the police apparatus had reasonable grounds, based on prima facie information and statement of facts, which included, backdrop advise from the then Kenya Anti-Corruption Commission.
23.I thus, do agree with the trial court that nothing malicious was presented against the respondents and no evidence was produced by the appellant to ascertain on the balance of probabilities, that he was intimidated and coerced to settle the kshs.150,000 as part payment of the 2nd respondent’s claim.
24.This notwithstanding, I do not agree, that the part payment of the claim by the appellant would constitute a presumed acknowledgment by the appellant, as espoused by the trial court. However, the facts and information presented by the 2nd respondent to the police in lodging her complaint against the appellant, constitute reasonable and probable cause which would constitute reasonable ground for arrest. Simply put, I do not find that the appellant was not unlawfully arrested and/or falsely imprisoned.
25.As a ripple effect, it would follow that the claims for damages, being that they stem from the nexus of the alleged false imprisonment are accordingly dismissed.
Conclusion
26.I find that the appeal lacks merit and is hereby dismissed.
27.Costs of the appeal assessed at Khs.50,000 all-inclusive payable by the appellant to the 1st and 2nd respondents.
Dated, Signed and Delivered at NAIROBI Virtually this ……31ST………Day of JULY, 2024.
……………………
WENDY MICHENI
JUDGE