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Court of AppealPartially AllowedCivil Appeal No. 49 of 2017

Robin Angus Paul v Mohamed Hemed Kale & another [2018] KECA 231 (KLR)

Court of Appeal
3 October 2018
PWP. N. WakiAVAlnashir VisramWKW. Karanja
3,182 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal cleared a landowner of malicious prosecution, ruling that an acquittal alone doesn't prove a prosecution was malicious — every element must be proved.

What this practically means

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Executive summary

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The respondents, brothers from Ngomeni village, were arrested and charged with malicious damage to property after the appellant, a Kenyan of British origin, reported that they had destroyed his perimeter fence on land he had bought from their late father. After the close of the prosecution case, the DPP entered a nolle prosequi; the respondents were immediately re-arrested and charged afresh with the same offence plus trespass, and a second nolle prosequi followed. The Chief Magistrate found the appellant and the Attorney General jointly liable for malicious prosecution, awarding general and exemplary damages. On the appellant's first appeal, the High Court (Chitembwe, J) upheld the finding of liability in respect of the second prosecution, reducing damages to Sh.400,000. The Court of Appeal allowed the appellant's second appeal. Holding that the well-settled four elements of malicious prosecution must all be proved and must unite to found the cause of action, the court found no evidence that the appellant set the second prosecution in motion: the DPP, an independent office under Article 157(10), alone terminated and recommenced the proceedings. The High Court's contrary finding, resting on the Attorney General's submissions (which were not evidence and were never put to the appellant) and on assumptions and deductions, was held baseless and contrived. The decision on liability was set aside and no damages were found payable by the appellant, with costs of the appeal awarded to the appellant against the respondents.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the High Court correctly held the appellant liable for the second arrest and prosecution of the respondents for malicious prosecution
  2. 2.Whether the quantum of damages awarded against the appellant was justified

Key legal issues

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01

Elements of the tort of malicious prosecution

Holding

All four elements must be proved and must unite; acquittal alone does not establish liability.

Reasoning

The court restated the Mbowa test: the defendant must have instituted the proceedings, acted without reasonable or probable cause, acted maliciously, and the proceedings must have terminated in the plaintiff's favour, plus proof of damage. All requirements must unite; failure to prove any one defeats the claim.

p. 3
02

Whether the appellant set the second prosecution in motion

Holding

No; the DPP alone decided to terminate the first case and recommence the second, and no evidence connected the appellant to those decisions.

Reasoning

The DPP is an independent office under Article 157(10) and section 6 of the ODPP Act; nothing suggested the appellant directed or controlled the termination and re-arrest. The High Court's contrary inference from the Attorney General's submissions was baseless and contrived, and those submissions were not evidence put to the appellant.

p. 4
03

Reasonable and probable cause for the original complaint

Holding

The finding that the appellant's report to police was factual, reasonable and without ill motive was unappealed and binds the respondents.

Reasoning

There was no cross-appeal against the High Court's finding that the initial report was made on probable and reasonable cause, the respondents having admitted damaging the fence. Respondents' counsel could not therefore challenge that finding.

p. 3

Legal principles established

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  • A plaintiff in malicious prosecution must prove all four elements of the tort, which must unite to establish the cause of action; acquittal alone is insufficient.
  • The DPP's prosecutorial decisions to terminate and recommence proceedings are made independently and cannot be attributed to a private complainant absent evidence of direction or control.
  • Counsel's submissions in related proceedings are not evidence and cannot found a finding of liability against a party who was not put to them.
  • Findings of fact on liability cannot rest on assumptions and deductions; reliance on them does not amount to proof.

Court orders

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  1. 1.Appeal allowed
  2. 2.Decision of the High Court on liability against the appellant set aside
  3. 3.No damages payable by the appellant
  4. 4.Costs of the appeal to be borne by the respondents

The bench

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One judgment of the whole court — no separate or dissenting opinions.

PW
majority
AV
majority
WK
majority
On appeal from
High Court of Kenya at Malindi
Civil Appeal No. 13 of 2016
Jurisdiction invoked
First appellate jurisdiction under the Court of Appeal Act over an appeal from the High Court sitting on first appeal

Relief refused

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Upholding of the award of general and exemplary damages against the appellant

Liability for malicious prosecution was not proved; the decision to terminate and recommence the prosecution was the DPP's alone and no evidence linked the appellant to it

p. 4

Costs

The costs of the appeal shall be borne by the respondents.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

All in all, we are not satisfied that the decision of the High Court on liability was correct. We allow the appeal and set it aside. It follows that no damages are payable by the appellant. The respondents' remedy lies elsewhere. The costs of the appeal shall be borne by the respondents.
p. 4Disposition - appeal allowed, liability and damages set aside
So that, it is not enough for the respondents to show that they were acquitted of alleged offences. All the other elements must be proved.
p. 3Elements of malicious prosecution
the submissions of the Attorney General which were relied on by the learned Judge were not evidence and were not put to the appellant for comment or rebuttal. The appellant appears to have been condemned without a hearing.
p. 3Submissions are not evidence; fair hearing
It follows that the decision to terminate the first prosecution and to recommence another was the DPP's alone. The decisions made may have been wrong, but they were the DPP's.
p. 4DPP independence and attribution of prosecutorial decisions

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Robin Angus Paul v Mohamed Hemed Kale & another [2018] KECA 231 (KLR)", Case Analysis (2018). Civil Appeal No. 49 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/231/eng@2018-10-03

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.