'
( An appeal from the Judgment of Hon. Limo B. Benjamin (PM) on 17 th November 2023 in Civil Case No. 106 of 2018 before the Chief Magistrate Court in Siaya)
The Appeal arises from the Judgment of Hon. Limo B. Benjamin (PM) delivered on 17 th November 2023 in Civil Case No. 106 of 2018 before the Chief Magistrate''s Court in Siaya.
Lucas Oginjo Gogo, the 1 st Respondent herein, was arrested on 26 th February 2014 and taken to Kogelo Police Station. The 1 st Respondent alleged that a false report was made to the police on 31 st January 2014 by Ambala Naftali O., the 2 nd Respondent herein. According to the 1 st Respondent, he was not informed of the reason for his arrest until he was arraigned before the Siaya Law Courts in Criminal Case No. 180 of 2014 for the offence of assault causing actual bodily harm to the 2 nd Respondent. According to the 1 st Respondent, it was the 2 nd Respondent who hired boda boda men and tout men to attack him for stopping the 2 nd Respondent’s workers from constructing on the 1 st Respondent’s land and who destroyed his house and motorcycle registration number KMCC 565M, Kingbird model.
In the Amended Plaint dated 22 nd June 2022, the 1 st Respondent pleaded injuries of fracture of the frontal bone, fracture of ribs, serious injuries on the neck, and serious injuries to the thorax and abdomen. He pleaded that he suffered special damages for the loss of his motorcycle, of Kshs. 86,000.00 and repair costs to the house at Kshs. 41,550.00. That on 13 th December 2017, he was acquitted of the said charge under Section 215 of the Criminal Procedure Code on the basis that the issue ought to have been subjected to civil proceedings as opposed to criminal proceedings.
The 1 st Respondent wholly blamed the 2 nd Respondent but also pleaded that his prosecution was as a direct result of shoddy investigations by the Appellant, who ought to have known that the nature of the complaint raised by the 2 nd Respondent was one that did not fall within the domain of the jurisdiction of the criminal court. The 1 st Respondent pleaded that his status in the eyes of the members of the public has been ruined and that he is now treated with odium and contempt as a result of the malicious complaint by the 2 nd Respondent. According to the 1 st Respondent, his claim was actionable per se .
The 1 st Respondent sought the following reliefs: General damages for (i) defamation,(ii) False imprisonment, (iii) malicious prosecution
General damages for pain, suffering, and loss of amenities against the 2 nd Respondent
Costs and incidentals to the suit
Interest on (a), (b), and (c) above
Special damages of Kshs. 128,150 plus interest.
Any other relief that the Court shall deem fit and expedient to grant.
In its Statement of Defence dated 28 th February 2019, the Appellant pleaded that the 1 st Respondent''s arrest was conducted following a reasonable and probable apprehension of a felony chargeable before a court of law. The particulars of malice were denied. The Appellant denied destroying the 1 st Respondent’s house and motorcycle. According to the Appellant, the suit offended the provisions of the Government Proceedings Act, Cap. 40. The Appellant prayed for the suit against it to be dismissed with costs.
The 2 nd Respondent filed a Statement of Defence dated 30 th October 2019 and amended on 13 th July 2022. He pleaded that he only made a complaint to the police, but the decision whether to charge or not did not fall within his ambit. He denied making a false report at the police station. He pleaded that the suit is frivolous, scandalous, a total abuse of the court process aimed at settling scores with him by circumventing the judgment in criminal case no. 180 of 2018. He pleaded that the Plaint does not disclose any cause of action against the 2 nd Respondent and that the suit should be dismissed with costs.
In the reply to the 2 nd Respondent’s defence dated 27 th November 2019, the 1 st Respondent pleaded that the defence is a mere general denial, a sham, and is only meant to delay the 1 st Respondent’s claim for justice, and that the same should be struck out for not raising a reasonable defence.
PW1 Lucas Oginjo Gogo stated that on 31 st January 2014 at 6.00 am, he found people taking measurements to construct a video show on his plot. Upon inquiring, they claimed that the 2 nd Respondent had employed them. They stopped. At around 10:00 am, he found them constructing the building. They beat him up and left him unconscious. He found himself at Siaya Hospital and was later referred to Oginga Odinga Referral Hospital, where he was treated and discharged. Police from Kogelo police station arrested him as the 2 nd Respondent had reported an assault case against him, which is alleged to have happened on 31 st January 2014. He was charged at Siaya Court in Criminal Case No. 180 of 2014 but was acquitted. He stated that the prosecution was malicious as it was the 2 nd Respondent who assaulted him. He stated that the police did not investigate the case but just charged him. He produced treatment chits from Siaya District, Discharge summary, CT Scan Avenue Hospital, Kisumu. He stated that he reported the matter when he left the hospital at Ng’iya Police station vide OB No. 5/1/2014 and was given P3 Form produced as P. Exhibit 2. He stated that his house and motorcycle were destroyed. He prayed for compensation for defamation, malicious prosecution, pain for assault, and costs of the suit.
DW1 (2 nd Respondent adopted his witness statement dated 14 th July 2022 as his evidence in chief and produced the list of documents as exhibits No. 1 to 3. He stated that he complained to the police about being assaulted by the 1 st Respondent.
The Appellant’s case was closed without their testimony.
In the impugned judgment, the learned trial Magistrate Hon. Limo B. Benjamin (PM) held that all the elements in a malicious prosecution claim enunciated in Mbowa vs East Mengo District Administration [1972] EA 352 were established by the 1 st Respondent. He went ahead to hold that the Appellant and 2 nd Respondent were served but elected not to defend the suit against them. According to the learned trial Magistrate, malice was established since the parties had a dispute over a piece of land and which later escalated to the destruction of the 1 st Respondent’s properties. The learned trial Magistrate held that the police seem not to have investigated the claim against the 2 nd Respondent that he participated in the events that led to the attack against the 1 st Respondent. The 1 st Respondent was found to have proved his case on a balance of probabilities and that judgment was entered in his favour.
Regarding the defamation claim, it was held that the same would fail since no entity was joined as part of the chain that conveyed the alleged defamatory words to tarnish the 1 st Respondent’s dignity. Regarding the claim for damages for pain and suffering against the 2 nd Respondent, the learned trial Magistrate found that the injuries listed by the 1 st Respondent were not sustained in the course of his police arrest and the false imprisonment, but from the alleged attack, thus the complaint ought to be subjected to police inquiry and prosecution of the assailants to establish if indeed the 2 nd Respondent attacked the 1 st Respondent or not. The learned trial Magistrate declined to award damages to the 1 st Respondent. The 1 st Respondent was awarded general damages of Kshs. 500,000.00 against the Appellant and 2 nd Respondent. According to the learned trial Magistrate, the damages were to be paid by the Appellant. Costs of the suit were awarded to the 1 st Respondent.
Aggrieved, the Appellant appealed vide the Memorandum of Appeal dated 1 st February 2024, contending that:
That the learned trial magistrate erred in law and in fact by holding the Appellant wholly liable for malicious prosecution, which finding was not supported by evidence.
That the learned trial magistrate erred in law and fact by finding that the police did not conduct investigations, which finding was not supported by any evidence.
That the learned trial magistrate erred in law and fact by ignoring that it is not the constitutional mandate of the Office of the Attorney General to make a decision to charge and prosecute suspects, thus there was no valid cause of action against it.
That the learned trial magistrate erred in law and fact by ignoring the authorities cited in the Appellant’s written submissions and all authorities cited.
That the learned trial magistrate''s award of general damages for pain and suffering is so manifestly excessive in the circumstances as to amount to an erroneous estimate of the loss suffered by the 1 st Respondent.
The Appellants pray that the learned trial Magistrate''s finding on liability and the award of damages be set aside as a whole and that the same be substituted with an order dismissing the claim against the Appellant and/or assessing general damages at a substantially lower amount commensurate with the Plaintiff’s injuries and the available authorities for the award made with respect to comparable injuries. The Appellant seeks costs of this appeal and the suit.
The appeal was canvassed by way of written submissions. However, it is only the Respondents who complied.
The 1 st Respondent submits that the Appellant did not bother to conduct investigations to ascertain the report made by the 2 nd Respondent. According to the 1 st Respondent, the ODPP is expected that before an arrest, to have sufficient information justifying the arrest of the suspect. Reliance is placed on James Kahindi Simba vs DPP & 2 Others [2020] eKLR on the proposition that if a report turns out to be false, the arrest becomes unlawful. According to the 1 st Respondent, he was the one who was attacked and not the 2 nd Respondent, having produced evidence of the same vide a P3 Form dated 1 st February 2014. According to the 1 st Respondent, the proceedings were initiated without unreasonable or probable cause since it was the 1 st Respondent who was admitted to the hospital as a result of the injuries sustained from the 2 nd Respondent’s actions. The 1 st Respondent asserts that the Appellant and 2 nd Respondent jointly instituted the proceedings against the 1 st Respondent maliciously, as the Criminal Court found the 1 st Respondent innocent and acquitted him of the charge preferred against him. According to the 1 st Respondent, the 2 nd Respondent caused the destruction of the 1 st Respondent’s property. Regarding the damages for pain and suffering, the 1 st Respondent submits that an award of Kshs. 750,000.00 is reasonable compensation. Reliance is placed on Blue Horizon Travel Co. Ltd vs Kenneth Njoroge [2020] eKLR, where the Appellant was given Kshs. 400,000.00. The 1 st Respondent submits that Kshs. 128, 150 as special damages were proved. The 1 st Respondent urges this Court to find the appeal lacks merit and the same be dismissed with costs and that the trial court’s judgment should be upheld.
The 2 nd Respondent submits that there is no appeal since a certified copy of the Order has not been attached pursuant to Section 79G of the Civil Procedure Act, which is couched in mandatory terms. Reference is made to Order 42 Rule 2 of the Civil Procedure Rules, 2010. The 2 nd Respondent submits that, in light of Section 79G and Order 42 Rule 2, an appeal lodged in the High Court against a decision of the subordinate Court would be incomplete without an order or the decree appealed against. It is submitted that the Record of Appeal will not be complete without the decree or order appealed against as envisaged under Order 42 Rule 13(4) (f) (ii) of the Civil Procedure Rules. It is submitted that the appeal ought not to have been admitted and the directions not taken. The 2 nd Respondent urges this Court to find that no appeal exists and that the same should be struck out.
The 2 nd Respondent submits further that the powers to investigate the complaint, preferring charges, and prosecuting the 1 st Respondent were beyond his control. According to the 2 nd Respondent, the fact that the 1 st Respondent was acquitted in the criminal case does not translate to the fact that the 1 st Respondent had no reasonable and plausible cause, that it was malicious, no tangible evidence or that he abused the criminal justice system or misused the office of the police and the DPP with a view of having the 1 st Respondent prosecuted. It is submitted that malice cannot be transferred to the Prosecutor unless it is proved that there was collusion between the complainant and the Prosecutor in bringing up the prosecution. Reliance is placed on Music Copyright Society of Kenya vs Tom Odhiambo Ogowi [2014] eKLR . The 2 nd Respondent urges this Court to find that the appeal lacks merit.
Determination
Having considered the appeal in light of the evidence on record and written submissions filed on behalf of the parties herein, this court’s role as the first appellate court is to re-evaluate and subject the evidence to a fresh analysis so as to reach an independent conclusion as to whether or not to uphold the decision of the trial court. The court also takes note of the fact that it did not have the benefit of seeing or hearing the witnesses testify and therefore has to make an allowance for the same. See Selle vs. Associated Motor Boat Co. [1968] EA 123).
Odunga J. (as he then was) in China Wu Yi Company Limited vs Ronald Manthi David [2021] KEHC 1626 (KLR) stated that this Court is under a duty to delve at some length into factual details and revisit the facts as presented in the trial Court, analyze the same, evaluate it and arrive at its independent conclusions, but always remembering, and giving allowance for it, that the trial Court had the advantage of hearing the parties.
In Abok James Odera t/a A.J Odera & Associates v John Patrick Machira t/a Machira & Co. Advocates [2013] e KLR , with regard to the duty of the first appellate court;
“This being a first appeal, we are reminded of our primary role as a first appellate court, namely, to re-evaluate, re-assess, and reanalyze 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.”
Before delving into the merits of the appeal, i note that the 2 nd Respondent contends that this appeal is defective. The 2 nd Respondent contends that there is no appeal since a certified copy of the Order has not been attached to the Record of Appeal. The Appellant’s Record of Appeal is dated 26 th January 2025.
In Paul Kurunyi Leshuel vs Ephantus Kariithi Mwangi & Another (2015) eKLR Justice Ngaah stated:-
“…the question whether or not there is indeed an appeal which called for the appellate court to exercise its jurisdiction in that respect goes to the root of the appeal itself, for without an appeal properly so called, any attempt to invoke and exercise that jurisdiction would be in vain.”
Under Order 42 rule 13(4) Civil Procedure Rules, the appellate court is under a duty to ensure the documents necessary for an appeal are on record before allowing the appeal to go for a hearing. The Rule provides as follows:-
(4) Before allowing the appeal to go for hearing the judge shall be satisfied that the following documents are on the court record, and that such of them as are not in the possession of either party have been served on that party, that is to say:
(a) the memorandum of appeal;
(b) the pleadings;
(c) the notes of the trial magistrate made at the hearing;
(d) the transcript of any official shorthand, typist notes, electronic recording, or palantypist notes made at the hearing;
(e) all affidavits, maps, and other documents whatsoever put in evidence before the magistrate; (f) the judgment, order, or decree appealed from, and, where appropriate, the order (if any) giving leave to appeal :
Provided that— (i) a translation into English shall be provided of any document not in that language; (ii) the judge may dispense with the production of any document or part of a document which is not relevant, other than those specified in paragraphs (a), (b) and (f).”
Where documents under Sub-rule (a), (b) & (f) are not filed, there is no competent appeal worth consideration by the appellate court. Sub Rule 13(4) (ii) is couched in mandatory terms. In Akile & Another v Mugo (Civil Appeal E013 of 2023) [2024]KEHC 6538 (KLR), the court stated:-
“Under Sub-rule (a), (b) & (f) in a Memorandum of Appeal pleadings, the Judgment, order, or decree appealed from, and the order (if any) giving leave to appeal, are documents which must be filed in an appeal. Where they are not filed, there is no competent appeal worth consideration by the appellate court.’
Under (f), the mandatory documents are the judgment, order, or decree. The appeal arises from the judgment delivered on 17 th November 2023 by Hon. Limo B. Benjamin (PM). A copy of the judgment has been attached in the Record of Appeal at pages 114 to 118 as per the Index. The index shows that the Decree attached at page 118 is dated 8 th July 2019. The decree is dated 17 th April 2019 and issued on 8 th July 2019 by Hon. Muthoni Mwangi (RM) in respect of a judgment delivered on 17 th April 2019. The judgment is not attached to the Record of Appeal and is not the subject of this appeal. The 2 nd Respondent contends that in the absence of a certified copy of the order, there is no proper appeal before this Court. The proviso indicates a judgment, order, or decree.
Section 2 of the Civil Procedure Act defines a decree in the following terms:
“ decree " means the formal expression of an adjudication which, so far as regards the court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final; it includes the striking out of a plaint and the determination of any question within section 34 or section 91, but does not include—
(a) any adjudication from which an appeal lies as an appeal from an order; or
(b) any order of dismissal for default:
Provided that, for the purposes of appeal, "decree" includes judgment, and a judgment shall be appealable notwithstanding the fact that a formal decree in pursuance of such judgment may not have been drawn up or may not be capable of being drawn up;’’
The Court in Elizanya Investments Limited v Lean Energy Solutions [2021] KEHC 8495 (KLR), stated, thus: -
“30. I am of the view that the use of the conjunction "or" means that an appellant is not mandatorily obligated to attach both the Judgment and the decree. Further, a decree is an extract of the Judgment appealed from. A decree is defined under Section 2 of the Civil Procedure Act, Cap 21, Laws of Kenya, as follows:
31. In the present appeal, the appellant led Kilifi Senior Principal Magistrate’s Court Civil Case No. 326 of 2018. After hearing the parties, Judgment was delivered dismissing the appellant’s suit, with costs to the respondent. In this court’s view, the failure to include a certified copy of the decree in the Record of Appeal should not invalidate the present appeal for reasons of non-compliance, as this court has had the benefit of reading the Judgment which was rendered by the trial Court.”
From the foregoing, the fact that a certified copy of the order as submitted by the 2 nd Respondent has not been attached to the Record of Appeal, and the attached decree does not arise from the judgment of Hon. Limo B. Benjamin (PM), the subject of this appeal, I find that it is not mandatory that the Appellant must attach both the judgment and decree or Order. A copy of a certified judgment has not been attached to the Record of Appeal. The failure to include the alleged certified copy of the order cannot invalidate this appeal. The appeal is against a judgment where the decree is extracted as per Section 2 of the Civil Procedure Act. This ground must fail.
As to whether the appeal has merit, I find the issues for determination are: Whether the claim for malicious prosecution was proved.
Is the 1 st Respondent entitled to damages (if any)?
The Appellant faults the learned trial Magistrate for finding it wholly liable for the tort of malicious prosecution. The Court must conclusively establish that all the ingredients set out in the case of Mbowa vs East Mengo District Administration [1972] EA 352 have been satisfied by the aggrieved party. The Court expressed that;
“a. The action for damages for malicious prosecution is part of the common law of England….The tort of malicious prosecution is committed where there is no legal reason for instituting criminal proceedings. The purpose of the prosecution should be personal and spiteful rather than for the public benefit. It originated in the medieval writ of conspiracy, which was aimed against combinations to abuse legal procedure, that is, it was aimed at the prevention or restraint of improper legal proceedings…… It occurs as a result of the abuse of the minds of judicial authorities, whose responsibility is to administer criminal justice. It suggests the existence of malice and the distortion of the truth.
b. Its essential ingredients are:
i. The criminal proceedings must have been instituted by the defendant, that is, he was instrumental in setting the law in motion against the plaintiff, and it succeeds if he lays an information before a judicial authority who then issues a warrant for the arrest of the plaintiff, or a person arrests the plaintiff and takes him before a judicial authority;
ii. The defendant must have acted without reasonable or probable cause, i.e. there must have been no facts, which on reasonable grounds, the defendant genuinely thought that the criminal proceedings were justified;
iii. The defendant must have acted maliciously in that he must have acted, in instituting criminal proceedings, with an improper and wrongful motive, that is, with an intent to use the legal process in question for some other than its legally appointed and appropriate purpose; and
iv. The criminal proceedings must have been terminated in the plaintiff’s favour, that is, the plaintiff must show that the proceedings were brought to a legal end and that he has been acquitted of the charge……
The plaintiff, in order to succeed, has to prove that the four essentials or requirements of malicious prosecution, as set out above, have been fulfilled and that he has suffered damage.
In other words, the four requirements must “unite” in order to create or establish a cause of action. If the plaintiff does not prove them, he would fail in his action. The damage that is claimed is in respect of reputation, but other damages might be claimed, for example, damage to property…..The damage to the plaintiff results at the stage in the criminal proceedings when the plaintiff is acquitted or, if there is an appeal, when his conviction is quashed or set aside. In other words, the damage resulted at a stage when the criminal proceedings came to an end in his favour, whether finally or not. The plaintiff could not possibly succeed without proving any or all of the first three essentials of malicious prosecution; without the fourth, which forms part of the cause of action, would not take him very far. He must prove that the court has found him not guilty of the offense charged….. The law in action for malicious prosecution has been clearly defined, and insofar as the ordinary criminal prosecution is concerned, the action does not lie until the plaintiff has been acquitted of the charge.
In National Oil Corporation vs John Mwangi Kaguenyu 2 Others [2019] eKLR, the Court stated that,
“…case law is replete with the issue of malicious prosecution. Of critical importance is that a litigant must establish malice. It is not sufficient to find one liable on the basis that he/she is the one who made the complaint. In the often-cited case of MURUNGA VS. ATTORNEY GENERAL [1979] KLR 138, the principles of the tort of malicious prosecution were spelt out. These are:-
“i) The defendant instituted the prosecution against the plaintiff.
ii) The prosecution ended in the plaintiff’s favour.
iii) The prosecution was instituted without reasonable and probable cause.
iv) The prosecution was actuated by malice.”
I find all the ingredients set out in the Mbowa case were satisfied by the 1 st Respondent. The prosecution of the 1 st Respondent was actuated by malice. The learned trial Magistrate correctly found that the tort of malicious prosecution was proved. Indeed, the Appellant prosecuted the 1 st Respondent who was actually the one attacked and assaulted and admitted in hospital as per the documents presented before the criminal court which found in favour of the 1 st Respondent and acquitted him of the charges. It is instructive that the Appellant did not appeal against the said acquittal if it was aggrieved about it. It is clear that the police and the 2 nd Respondent ganged up together and opted to charge the 1 st Respondent despite that he too had a P3 form as proof of assault. The police ought to have charged both the 1 st Respondent and the 2 nd Respondent for an offence of affray but not to charge only one person. I find that the 1 st Respondent’s acquittal was proper and thus the suit for malicious prosecution was properly established against the Appellant. The Appellant’s grounds of appeal therefore lack merit.
Having found that the tort of malicious prosecution was correctly proved, the Appellant contends that the award of general damages for pain and suffering is so manifestly excessive in the circumstances as to amount to an erroneous estimate of the loss suffered by the Respondent.
The Court of Appeal in Kemfro Africa Ltd v A. M. Lubia & Another (1988)1 KAR 727 discussed the principles to be observed when an appellate Court is dealing with an appeal on assessment of damages. The Court expressed itself clearly thus:
The principles to be observed by an appellate court in deciding whether it is justified in disturbing the quantum of damages awarded by a trial Judge were held by the former Court of Appeal of Eastern Africa to be that it must be satisfied that either the Judge, in assessing the damages took into account an irrelevant factor, or left out of account a relevant one, or that; short of this, the amount is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damage.
The learned trial Magistrate found that damages for pain and suffering against the 2 nd Respondent were not proved and declined to grant the same. According to the Appellant, the award of general damages for pain and suffering was excessive. What was granted were general damages of Kshs. 500,000.00 as against the Defendants for loss suffered as a result of the tort of malicious prosecution. It follows, therefore, that general damages of Kshs. 500,000 has not been as per the grounds of appeal.
However, it is noted that the Appellant prays in the Memorandum of Appeal that the award of damages be set aside as a whole. In my view, the award of general damages in the sum of Kshs. 500,000.00 was reasonable. It is trite that the assessment of quantum of damages is a matter for the discretion of the trial court, which must be exercised judicially and with regard to the general conditions prevailing in the country, such as inflation, and also prior relevant decisions as held by the Court of Appeal in Ol Pejeta Ranching Limited v David Wanjau Muhoro [2017] KECA 329 (KLR) . It is instructive that the 1 st Respondent was attacked by goons hired by the 2 nd Respondent and which led to his hospitalization as can be seen from the medical notes. I find the award to be reasonable in the circumstances as it would take care of the 1 st Respondent’s circumstances of having been assaulted and subjected to a criminal trial where his reputation was damaged.
In the upshot, it is my finding that the Appellant’s appeal lacks merit. The same is dismissed in its entirety with costs to the 1 st Respondent to be borne by the Appellant and the 2 nd Respondent.
Orders accordingly.
Dated, signed, and delivered at Siaya this 19 th day of
September 2025.
D. K. Kemei
Judge
In the presence of:
N/A Esendi.........for Appellant
M/ Omondi..................... for 1 st Respondent
M/s Omondi………………...for 2 nd Respondent
Okumu…………….............. Court Assistant
'
( An appeal from the Judgment of Hon. Limo B. Benjamin (PM) on 17 th November 2023 in Civil Case No. 106 of 2018 before the Chief Magistrate Court in Siaya)
The Appeal arises from the Judgment of Hon. Limo B. Benjamin (PM) delivered on 17 th November 2023 in Civil Case No. 106 of 2018 before the Chief Magistrate''s Court in Siaya.
Lucas Oginjo Gogo, the 1 st Respondent herein, was arrested on 26 th February 2014 and taken to Kogelo Police Station. The 1 st Respondent alleged that a false report was made to the police on 31 st January 2014 by Ambala Naftali O., the 2 nd Respondent herein. According to the 1 st Respondent, he was not informed of the reason for his arrest until he was arraigned before the Siaya Law Courts in Criminal Case No. 180 of 2014 for the offence of assault causing actual bodily harm to the 2 nd Respondent. According to the 1 st Respondent, it was the 2 nd Respondent who hired boda boda men and tout men to attack him for stopping the 2 nd Respondent’s workers from constructing on the 1 st Respondent’s land and who destroyed his house and motorcycle registration number KMCC 565M, Kingbird model.
In the Amended Plaint dated 22 nd June 2022, the 1 st Respondent pleaded injuries of fracture of the frontal bone, fracture of ribs, serious injuries on the neck, and serious injuries to the thorax and abdomen. He pleaded that he suffered special damages for the loss of his motorcycle, of Kshs. 86,000.00 and repair costs to the house at Kshs. 41,550.00. That on 13 th December 2017, he was acquitted of the said charge under Section 215 of the Criminal Procedure Code on the basis that the issue ought to have been subjected to civil proceedings as opposed to criminal proceedings.
The 1 st Respondent wholly blamed the 2 nd Respondent but also pleaded that his prosecution was as a direct result of shoddy investigations by the Appellant, who ought to have known that the nature of the complaint raised by the 2 nd Respondent was one that did not fall within the domain of the jurisdiction of the criminal court. The 1 st Respondent pleaded that his status in the eyes of the members of the public has been ruined and that he is now treated with odium and contempt as a result of the malicious complaint by the 2 nd Respondent. According to the 1 st Respondent, his claim was actionable per se .
The 1 st Respondent sought the following reliefs: General damages for (i) defamation,(ii) False imprisonment, (iii) malicious prosecution
General damages for pain, suffering, and loss of amenities against the 2 nd Respondent
Costs and incidentals to the suit
Interest on (a), (b), and (c) above
Special damages of Kshs. 128,150 plus interest.
Any other relief that the Court shall deem fit and expedient to grant.
In its Statement of Defence dated 28 th February 2019, the Appellant pleaded that the 1 st Respondent''s arrest was conducted following a reasonable and probable apprehension of a felony chargeable before a court of law. The particulars of malice were denied. The Appellant denied destroying the 1 st Respondent’s house and motorcycle. According to the Appellant, the suit offended the provisions of the Government Proceedings Act, Cap. 40. The Appellant prayed for the suit against it to be dismissed with costs.
The 2 nd Respondent filed a Statement of Defence dated 30 th October 2019 and amended on 13 th July 2022. He pleaded that he only made a complaint to the police, but the decision whether to charge or not did not fall within his ambit. He denied making a false report at the police station. He pleaded that the suit is frivolous, scandalous, a total abuse of the court process aimed at settling scores with him by circumventing the judgment in criminal case no. 180 of 2018. He pleaded that the Plaint does not disclose any cause of action against the 2 nd Respondent and that the suit should be dismissed with costs.
In the reply to the 2 nd Respondent’s defence dated 27 th November 2019, the 1 st Respondent pleaded that the defence is a mere general denial, a sham, and is only meant to delay the 1 st Respondent’s claim for justice, and that the same should be struck out for not raising a reasonable defence.
PW1 Lucas Oginjo Gogo stated that on 31 st January 2014 at 6.00 am, he found people taking measurements to construct a video show on his plot. Upon inquiring, they claimed that the 2 nd Respondent had employed them. They stopped. At around 10:00 am, he found them constructing the building. They beat him up and left him unconscious. He found himself at Siaya Hospital and was later referred to Oginga Odinga Referral Hospital, where he was treated and discharged. Police from Kogelo police station arrested him as the 2 nd Respondent had reported an assault case against him, which is alleged to have happened on 31 st January 2014. He was charged at Siaya Court in Criminal Case No. 180 of 2014 but was acquitted. He stated that the prosecution was malicious as it was the 2 nd Respondent who assaulted him. He stated that the police did not investigate the case but just charged him. He produced treatment chits from Siaya District, Discharge summary, CT Scan Avenue Hospital, Kisumu. He stated that he reported the matter when he left the hospital at Ng’iya Police station vide OB No. 5/1/2014 and was given P3 Form produced as P. Exhibit 2. He stated that his house and motorcycle were destroyed. He prayed for compensation for defamation, malicious prosecution, pain for assault, and costs of the suit.
DW1 (2 nd Respondent adopted his witness statement dated 14 th July 2022 as his evidence in chief and produced the list of documents as exhibits No. 1 to 3. He stated that he complained to the police about being assaulted by the 1 st Respondent.
The Appellant’s case was closed without their testimony.
In the impugned judgment, the learned trial Magistrate Hon. Limo B. Benjamin (PM) held that all the elements in a malicious prosecution claim enunciated in Mbowa vs East Mengo District Administration [1972] EA 352 were established by the 1 st Respondent. He went ahead to hold that the Appellant and 2 nd Respondent were served but elected not to defend the suit against them. According to the learned trial Magistrate, malice was established since the parties had a dispute over a piece of land and which later escalated to the destruction of the 1 st Respondent’s properties. The learned trial Magistrate held that the police seem not to have investigated the claim against the 2 nd Respondent that he participated in the events that led to the attack against the 1 st Respondent. The 1 st Respondent was found to have proved his case on a balance of probabilities and that judgment was entered in his favour.
Regarding the defamation claim, it was held that the same would fail since no entity was joined as part of the chain that conveyed the alleged defamatory words to tarnish the 1 st Respondent’s dignity. Regarding the claim for damages for pain and suffering against the 2 nd Respondent, the learned trial Magistrate found that the injuries listed by the 1 st Respondent were not sustained in the course of his police arrest and the false imprisonment, but from the alleged attack, thus the complaint ought to be subjected to police inquiry and prosecution of the assailants to establish if indeed the 2 nd Respondent attacked the 1 st Respondent or not. The learned trial Magistrate declined to award damages to the 1 st Respondent. The 1 st Respondent was awarded general damages of Kshs. 500,000.00 against the Appellant and 2 nd Respondent. According to the learned trial Magistrate, the damages were to be paid by the Appellant. Costs of the suit were awarded to the 1 st Respondent.
Aggrieved, the Appellant appealed vide the Memorandum of Appeal dated 1 st February 2024, contending that:
That the learned trial magistrate erred in law and in fact by holding the Appellant wholly liable for malicious prosecution, which finding was not supported by evidence.
That the learned trial magistrate erred in law and fact by finding that the police did not conduct investigations, which finding was not supported by any evidence.
That the learned trial magistrate erred in law and fact by ignoring that it is not the constitutional mandate of the Office of the Attorney General to make a decision to charge and prosecute suspects, thus there was no valid cause of action against it.
That the learned trial magistrate erred in law and fact by ignoring the authorities cited in the Appellant’s written submissions and all authorities cited.
That the learned trial magistrate''s award of general damages for pain and suffering is so manifestly excessive in the circumstances as to amount to an erroneous estimate of the loss suffered by the 1 st Respondent.
The Appellants pray that the learned trial Magistrate''s finding on liability and the award of damages be set aside as a whole and that the same be substituted with an order dismissing the claim against the Appellant and/or assessing general damages at a substantially lower amount commensurate with the Plaintiff’s injuries and the available authorities for the award made with respect to comparable injuries. The Appellant seeks costs of this appeal and the suit.
The appeal was canvassed by way of written submissions. However, it is only the Respondents who complied.
The 1 st Respondent submits that the Appellant did not bother to conduct investigations to ascertain the report made by the 2 nd Respondent. According to the 1 st Respondent, the ODPP is expected that before an arrest, to have sufficient information justifying the arrest of the suspect. Reliance is placed on James Kahindi Simba vs DPP & 2 Others [2020] eKLR on the proposition that if a report turns out to be false, the arrest becomes unlawful. According to the 1 st Respondent, he was the one who was attacked and not the 2 nd Respondent, having produced evidence of the same vide a P3 Form dated 1 st February 2014. According to the 1 st Respondent, the proceedings were initiated without unreasonable or probable cause since it was the 1 st Respondent who was admitted to the hospital as a result of the injuries sustained from the 2 nd Respondent’s actions. The 1 st Respondent asserts that the Appellant and 2 nd Respondent jointly instituted the proceedings against the 1 st Respondent maliciously, as the Criminal Court found the 1 st Respondent innocent and acquitted him of the charge preferred against him. According to the 1 st Respondent, the 2 nd Respondent caused the destruction of the 1 st Respondent’s property. Regarding the damages for pain and suffering, the 1 st Respondent submits that an award of Kshs. 750,000.00 is reasonable compensation. Reliance is placed on Blue Horizon Travel Co. Ltd vs Kenneth Njoroge [2020] eKLR, where the Appellant was given Kshs. 400,000.00. The 1 st Respondent submits that Kshs. 128, 150 as special damages were proved. The 1 st Respondent urges this Court to find the appeal lacks merit and the same be dismissed with costs and that the trial court’s judgment should be upheld.
The 2 nd Respondent submits that there is no appeal since a certified copy of the Order has not been attached pursuant to Section 79G of the Civil Procedure Act, which is couched in mandatory terms. Reference is made to Order 42 Rule 2 of the Civil Procedure Rules, 2010. The 2 nd Respondent submits that, in light of Section 79G and Order 42 Rule 2, an appeal lodged in the High Court against a decision of the subordinate Court would be incomplete without an order or the decree appealed against. It is submitted that the Record of Appeal will not be complete without the decree or order appealed against as envisaged under Order 42 Rule 13(4) (f) (ii) of the Civil Procedure Rules. It is submitted that the appeal ought not to have been admitted and the directions not taken. The 2 nd Respondent urges this Court to find that no appeal exists and that the same should be struck out.
The 2 nd Respondent submits further that the powers to investigate the complaint, preferring charges, and prosecuting the 1 st Respondent were beyond his control. According to the 2 nd Respondent, the fact that the 1 st Respondent was acquitted in the criminal case does not translate to the fact that the 1 st Respondent had no reasonable and plausible cause, that it was malicious, no tangible evidence or that he abused the criminal justice system or misused the office of the police and the DPP with a view of having the 1 st Respondent prosecuted. It is submitted that malice cannot be transferred to the Prosecutor unless it is proved that there was collusion between the complainant and the Prosecutor in bringing up the prosecution. Reliance is placed on Music Copyright Society of Kenya vs Tom Odhiambo Ogowi [2014] eKLR . The 2 nd Respondent urges this Court to find that the appeal lacks merit.
Determination
Having considered the appeal in light of the evidence on record and written submissions filed on behalf of the parties herein, this court’s role as the first appellate court is to re-evaluate and subject the evidence to a fresh analysis so as to reach an independent conclusion as to whether or not to uphold the decision of the trial court. The court also takes note of the fact that it did not have the benefit of seeing or hearing the witnesses testify and therefore has to make an allowance for the same. See Selle vs. Associated Motor Boat Co. [1968] EA 123).
Odunga J. (as he then was) in China Wu Yi Company Limited vs Ronald Manthi David [2021] KEHC 1626 (KLR) stated that this Court is under a duty to delve at some length into factual details and revisit the facts as presented in the trial Court, analyze the same, evaluate it and arrive at its independent conclusions, but always remembering, and giving allowance for it, that the trial Court had the advantage of hearing the parties.
In Abok James Odera t/a A.J Odera & Associates v John Patrick Machira t/a Machira & Co. Advocates [2013] e KLR , with regard to the duty of the first appellate court;
“This being a first appeal, we are reminded of our primary role as a first appellate court, namely, to re-evaluate, re-assess, and reanalyze 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.”
Before delving into the merits of the appeal, i note that the 2 nd Respondent contends that this appeal is defective. The 2 nd Respondent contends that there is no appeal since a certified copy of the Order has not been attached to the Record of Appeal. The Appellant’s Record of Appeal is dated 26 th January 2025.
In Paul Kurunyi Leshuel vs Ephantus Kariithi Mwangi & Another (2015) eKLR Justice Ngaah stated:-
“…the question whether or not there is indeed an appeal which called for the appellate court to exercise its jurisdiction in that respect goes to the root of the appeal itself, for without an appeal properly so called, any attempt to invoke and exercise that jurisdiction would be in vain.”
Under Order 42 rule 13(4) Civil Procedure Rules, the appellate court is under a duty to ensure the documents necessary for an appeal are on record before allowing the appeal to go for a hearing. The Rule provides as follows:-
(4) Before allowing the appeal to go for hearing the judge shall be satisfied that the following documents are on the court record, and that such of them as are not in the possession of either party have been served on that party, that is to say:
(a) the memorandum of appeal;
(b) the pleadings;
(c) the notes of the trial magistrate made at the hearing;
(d) the transcript of any official shorthand, typist notes, electronic recording, or palantypist notes made at the hearing;
(e) all affidavits, maps, and other documents whatsoever put in evidence before the magistrate; (f) the judgment, order, or decree appealed from, and, where appropriate, the order (if any) giving leave to appeal :
Provided that— (i) a translation into English shall be provided of any document not in that language; (ii) the judge may dispense with the production of any document or part of a document which is not relevant, other than those specified in paragraphs (a), (b) and (f).”
Where documents under Sub-rule (a), (b) & (f) are not filed, there is no competent appeal worth consideration by the appellate court. Sub Rule 13(4) (ii) is couched in mandatory terms. In Akile & Another v Mugo (Civil Appeal E013 of 2023) [2024]KEHC 6538 (KLR), the court stated:-
“Under Sub-rule (a), (b) & (f) in a Memorandum of Appeal pleadings, the Judgment, order, or decree appealed from, and the order (if any) giving leave to appeal, are documents which must be filed in an appeal. Where they are not filed, there is no competent appeal worth consideration by the appellate court.’
Under (f), the mandatory documents are the judgment, order, or decree. The appeal arises from the judgment delivered on 17 th November 2023 by Hon. Limo B. Benjamin (PM). A copy of the judgment has been attached in the Record of Appeal at pages 114 to 118 as per the Index. The index shows that the Decree attached at page 118 is dated 8 th July 2019. The decree is dated 17 th April 2019 and issued on 8 th July 2019 by Hon. Muthoni Mwangi (RM) in respect of a judgment delivered on 17 th April 2019. The judgment is not attached to the Record of Appeal and is not the subject of this appeal. The 2 nd Respondent contends that in the absence of a certified copy of the order, there is no proper appeal before this Court. The proviso indicates a judgment, order, or decree.
Section 2 of the Civil Procedure Act defines a decree in the following terms:
“ decree " means the formal expression of an adjudication which, so far as regards the court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final; it includes the striking out of a plaint and the determination of any question within section 34 or section 91, but does not include—
(a) any adjudication from which an appeal lies as an appeal from an order; or
(b) any order of dismissal for default:
Provided that, for the purposes of appeal, "decree" includes judgment, and a judgment shall be appealable notwithstanding the fact that a formal decree in pursuance of such judgment may not have been drawn up or may not be capable of being drawn up;’’
The Court in Elizanya Investments Limited v Lean Energy Solutions [2021] KEHC 8495 (KLR), stated, thus: -
“30. I am of the view that the use of the conjunction "or" means that an appellant is not mandatorily obligated to attach both the Judgment and the decree. Further, a decree is an extract of the Judgment appealed from. A decree is defined under Section 2 of the Civil Procedure Act, Cap 21, Laws of Kenya, as follows:
31. In the present appeal, the appellant led Kilifi Senior Principal Magistrate’s Court Civil Case No. 326 of 2018. After hearing the parties, Judgment was delivered dismissing the appellant’s suit, with costs to the respondent. In this court’s view, the failure to include a certified copy of the decree in the Record of Appeal should not invalidate the present appeal for reasons of non-compliance, as this court has had the benefit of reading the Judgment which was rendered by the trial Court.”
From the foregoing, the fact that a certified copy of the order as submitted by the 2 nd Respondent has not been attached to the Record of Appeal, and the attached decree does not arise from the judgment of Hon. Limo B. Benjamin (PM), the subject of this appeal, I find that it is not mandatory that the Appellant must attach both the judgment and decree or Order. A copy of a certified judgment has not been attached to the Record of Appeal. The failure to include the alleged certified copy of the order cannot invalidate this appeal. The appeal is against a judgment where the decree is extracted as per Section 2 of the Civil Procedure Act. This ground must fail.
As to whether the appeal has merit, I find the issues for determination are: Whether the claim for malicious prosecution was proved.
Is the 1 st Respondent entitled to damages (if any)?
The Appellant faults the learned trial Magistrate for finding it wholly liable for the tort of malicious prosecution. The Court must conclusively establish that all the ingredients set out in the case of Mbowa vs East Mengo District Administration [1972] EA 352 have been satisfied by the aggrieved party. The Court expressed that;
“a. The action for damages for malicious prosecution is part of the common law of England….The tort of malicious prosecution is committed where there is no legal reason for instituting criminal proceedings. The purpose of the prosecution should be personal and spiteful rather than for the public benefit. It originated in the medieval writ of conspiracy, which was aimed against combinations to abuse legal procedure, that is, it was aimed at the prevention or restraint of improper legal proceedings…… It occurs as a result of the abuse of the minds of judicial authorities, whose responsibility is to administer criminal justice. It suggests the existence of malice and the distortion of the truth.
b. Its essential ingredients are:
i. The criminal proceedings must have been instituted by the defendant, that is, he was instrumental in setting the law in motion against the plaintiff, and it succeeds if he lays an information before a judicial authority who then issues a warrant for the arrest of the plaintiff, or a person arrests the plaintiff and takes him before a judicial authority;
ii. The defendant must have acted without reasonable or probable cause, i.e. there must have been no facts, which on reasonable grounds, the defendant genuinely thought that the criminal proceedings were justified;
iii. The defendant must have acted maliciously in that he must have acted, in instituting criminal proceedings, with an improper and wrongful motive, that is, with an intent to use the legal process in question for some other than its legally appointed and appropriate purpose; and
iv. The criminal proceedings must have been terminated in the plaintiff’s favour, that is, the plaintiff must show that the proceedings were brought to a legal end and that he has been acquitted of the charge……
The plaintiff, in order to succeed, has to prove that the four essentials or requirements of malicious prosecution, as set out above, have been fulfilled and that he has suffered damage.
In other words, the four requirements must “unite” in order to create or establish a cause of action. If the plaintiff does not prove them, he would fail in his action. The damage that is claimed is in respect of reputation, but other damages might be claimed, for example, damage to property…..The damage to the plaintiff results at the stage in the criminal proceedings when the plaintiff is acquitted or, if there is an appeal, when his conviction is quashed or set aside. In other words, the damage resulted at a stage when the criminal proceedings came to an end in his favour, whether finally or not. The plaintiff could not possibly succeed without proving any or all of the first three essentials of malicious prosecution; without the fourth, which forms part of the cause of action, would not take him very far. He must prove that the court has found him not guilty of the offense charged….. The law in action for malicious prosecution has been clearly defined, and insofar as the ordinary criminal prosecution is concerned, the action does not lie until the plaintiff has been acquitted of the charge.
In National Oil Corporation vs John Mwangi Kaguenyu 2 Others [2019] eKLR, the Court stated that,
“…case law is replete with the issue of malicious prosecution. Of critical importance is that a litigant must establish malice. It is not sufficient to find one liable on the basis that he/she is the one who made the complaint. In the often-cited case of MURUNGA VS. ATTORNEY GENERAL [1979] KLR 138, the principles of the tort of malicious prosecution were spelt out. These are:-
“i) The defendant instituted the prosecution against the plaintiff.
ii) The prosecution ended in the plaintiff’s favour.
iii) The prosecution was instituted without reasonable and probable cause.
iv) The prosecution was actuated by malice.”
I find all the ingredients set out in the Mbowa case were satisfied by the 1 st Respondent. The prosecution of the 1 st Respondent was actuated by malice. The learned trial Magistrate correctly found that the tort of malicious prosecution was proved. Indeed, the Appellant prosecuted the 1 st Respondent who was actually the one attacked and assaulted and admitted in hospital as per the documents presented before the criminal court which found in favour of the 1 st Respondent and acquitted him of the charges. It is instructive that the Appellant did not appeal against the said acquittal if it was aggrieved about it. It is clear that the police and the 2 nd Respondent ganged up together and opted to charge the 1 st Respondent despite that he too had a P3 form as proof of assault. The police ought to have charged both the 1 st Respondent and the 2 nd Respondent for an offence of affray but not to charge only one person. I find that the 1 st Respondent’s acquittal was proper and thus the suit for malicious prosecution was properly established against the Appellant. The Appellant’s grounds of appeal therefore lack merit.
Having found that the tort of malicious prosecution was correctly proved, the Appellant contends that the award of general damages for pain and suffering is so manifestly excessive in the circumstances as to amount to an erroneous estimate of the loss suffered by the Respondent.
The Court of Appeal in Kemfro Africa Ltd v A. M. Lubia & Another (1988)1 KAR 727 discussed the principles to be observed when an appellate Court is dealing with an appeal on assessment of damages. The Court expressed itself clearly thus:
The principles to be observed by an appellate court in deciding whether it is justified in disturbing the quantum of damages awarded by a trial Judge were held by the former Court of Appeal of Eastern Africa to be that it must be satisfied that either the Judge, in assessing the damages took into account an irrelevant factor, or left out of account a relevant one, or that; short of this, the amount is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damage.
The learned trial Magistrate found that damages for pain and suffering against the 2 nd Respondent were not proved and declined to grant the same. According to the Appellant, the award of general damages for pain and suffering was excessive. What was granted were general damages of Kshs. 500,000.00 as against the Defendants for loss suffered as a result of the tort of malicious prosecution. It follows, therefore, that general damages of Kshs. 500,000 has not been as per the grounds of appeal.
However, it is noted that the Appellant prays in the Memorandum of Appeal that the award of damages be set aside as a whole. In my view, the award of general damages in the sum of Kshs. 500,000.00 was reasonable. It is trite that the assessment of quantum of damages is a matter for the discretion of the trial court, which must be exercised judicially and with regard to the general conditions prevailing in the country, such as inflation, and also prior relevant decisions as held by the Court of Appeal in Ol Pejeta Ranching Limited v David Wanjau Muhoro [2017] KECA 329 (KLR) . It is instructive that the 1 st Respondent was attacked by goons hired by the 2 nd Respondent and which led to his hospitalization as can be seen from the medical notes. I find the award to be reasonable in the circumstances as it would take care of the 1 st Respondent’s circumstances of having been assaulted and subjected to a criminal trial where his reputation was damaged.
In the upshot, it is my finding that the Appellant’s appeal lacks merit. The same is dismissed in its entirety with costs to the 1 st Respondent to be borne by the Appellant and the 2 nd Respondent.
Orders accordingly.
Dated, signed, and delivered at Siaya this 19 th day of
September 2025.
D. K. Kemei
Judge
In the presence of:
N/A Esendi.........for Appellant
M/ Omondi..................... for 1 st Respondent
M/s Omondi………………...for 2 nd Respondent
Okumu…………….............. Court Assistant
'