Commissioner of Customs & Excise v Hasmukh Shamji Halai & 3 others [2018] KECA 669 (KLR)
The bottom line
#Kenya's Court of Appeal ruled that being acquitted of a crime doesn't automatically win you a malicious prosecution case—you must prove who actually initiated it and why.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Commissioner of Customs & Excise was liable as the person who set the law in motion in the prosecution of Halai and Shinali
- 2.Whether the prosecution was instituted without reasonable and probable cause
- 3.Whether the prosecution was actuated by malice
Key legal issues
#Whether the Commissioner of Customs & Excise set the law in motion against the respondents
The finding that the Commissioner was the prime mover was erroneous; the complaint was made by Rayshian Apparels Ltd, the police investigated, and the Attorney General prosecuted, so the Commissioner was not actively instrumental in instituting the prosecution.
The Court re-evaluated the evidence as a first appeal and found that the initiator of the investigations was the Managing Director of Rayshian, whose letter of complaint was exhibited. Halai's own cross-examination exculpated the Commissioner, confirming that the police, not the Commissioner, carried out the investigations and that Rayshian was the complainant. Applying the Gitau definition, Rayshian alone was 'actively instrumental' in setting the law in motion; the Commissioner's role of seizing goods and recording statements did not constitute instituting the prosecution.
Whether there was reasonable and probable cause for the prosecution
There were probable and reasonable grounds for the prosecution; the respondents, as senior managers who dealt with the impugned goods and documents, fell within the definition of 'owner' under the Customs and Excise Act, and the trial court's finding to the contrary was based on a shallow view of the evidence.
The trial court erred in finding the respondents were junior employees with no nexus to the documents. Halai was Group Stores Manager and Shinali was Group Inputs Manager who cleared the goods from the ICD and in whose office the suspect C15 documents were prepared. Section 2 of the Customs and Excise Act defines 'owner' to include persons in possession, control or beneficially interested in the goods. The respondents failed to discharge the onus of proving the Commissioner did not act honestly or reasonably.
Whether the prosecution was actuated by malice
Malice was not proved; there was no evidence of improper and wrongful motive on the part of the Commissioner, and the respondents admitted there was no prior history of bad blood.
The Court held that all elements of the tort must dovetail to establish the cause of action, and having found reasonable and probable cause and no setting of the law in motion by the Commissioner, the trial court's malice finding was unsupportable. The respondents admitted no previous contact or dealings with the Commissioner's officers, making a finding of spite or ill-will contrived. The possibility of culpability was not lessened by the fact that the respondents were not directors of Jaribu.
The significance of acquittal in a malicious prosecution suit
Acquittal is merely one necessary element signifying a legal end to the criminal proceedings; it does not, of itself, prove innocence or ground the tort without proof of spite or ill-will.
Relying on Nzoia Sugar Company Ltd v Fungututi, the Court held that acquittal per se is not a sufficient basis for a malicious prosecution suit. The acquittal of the respondents arose from the disappearance of witnesses and documents, and it would be dangerous to equate such an acquittal with proof of innocence. The acquittal only signifies a legal end to the criminal proceedings, which is the sole significance it bears in the tort.
Legal principles established
#- To found a claim for malicious prosecution the plaintiff must prove that the defendant set the law in motion, which means being actively instrumental in causing the prosecution, not merely recording a statement or testifying as a complainant to the police
- An acquittal in a criminal trial is only one necessary element in a malicious prosecution suit; it does not equate to proof of innocence and spite or ill-will must still be proved
- The burden of proving absence of reasonable and probable cause, and that the prosecutor did not act honestly or reasonably, lies on the person prosecuted
- It is dangerous to equate an acquittal resulting from absence of witnesses or documents with proof of innocence when determining malicious prosecution liability
Court orders
#- 1.The judgment of Sitati J. dated 7th May 2012 in respect of the appellant is set aside
- 2.The suit against the Commissioner of Customs & Excise is dismissed
- 3.The appellant is awarded the costs of this appeal and of the High Court
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- H.C.C.C. No. 1585 of 2002 and 1586 of 2002
- Jurisdiction invoked
- First appellate jurisdiction over the High Court under Article 164(1) of the Constitution and the Court of Appeal Act (appellate jurisdiction exercised as a retrial on first appeal)
Relief refused
#Damages awards of Sh. 400,000 special damages and Sh. 3 million general damages previously awarded to each of Halai and Shinali against the appellant
The elements of malicious prosecution were not proved against the Commissioner; liability and damages findings were set aside
Costs
The appellant shall have the costs of this appeal and of the High Court.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
In the result, we hold that this appeal is meritorious and we allow it. The judgment of Sitati J. made on 7 th May, 2012 in respect of the appellant herein shall be and is hereby set aside and substituted with an order that the suit against the Commissioner of Customs & Excise be and is hereby dismissed.
The appellant shall have the costs of this appeal and of the High Court.
Acquittal per se on a criminal charge is not sufficient basis to ground a suit for malicious prosecution. Spite or ill-will must be proved against the prosecutor.
It would be a sad day, and a dangerous precedent in our criminal justice system, if we celebrated the acquittal of an accused due to the absence of witnesses and documents, regardless of the reasons for their absence, and equating the acquittal to proof of innocence.
Rayshian, and not the commissioner, was the one "actively instrumental in causing a person with some judicial authority to take action that involves the plaintiff in a criminal charge".
As this is a first appeal, we shall examine those issues seriatim by way of a retrial, reconsidering the evidence on record and re-evaluating it, in order to reach our own conclusions in the matter.
Ostensibly the claim was laid outside the limitation period and an objection was raised by the Attorney General but rejected, correctly in our view, on the ground that the cause of action arose after their acquittal and was not time barred.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Commissioner of Customs & Excise v Hasmukh Shamji Halai & 3 others [2018] KECA 669 (KLR)", Case Analysis (2018). Civil Appeal No. 29 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/669/eng@2018-04-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.