By Newton Arori Malicious prosecution refers to the filing of a lawsuit without sufficient evidence or for an improper purpose, such as to harass or defame the person being sued. The suit may be civil or criminal in nature. Generally the tort of malicious prosecution exists to guard against an abuse of the court process. The Supreme Court of Canada in Nelles vs. Ontario (1989) 2 SCR 170 set out the elements of malicious prosecution in the following words: “…The prosecution must have been initiated by the defendant, the prosecution must have been terminated in favour of the plaintiff, (and) there must be an absence of reasonable and probable cause…” Reasonable and probable cause was defined in the case of Hicks v Faulkher (1962) AC 766 thus: “An honest belief in the guilt of the accused based upon a full conviction founded upon reasonable grounds of the existence of circumstances, which, assuming them to be true, would reasonably lead any ordinary prudent and cautious man placed in the position of the accuser, to the conclusion that the accused was probably guilty of the crime imputed.” It is noteworthy that merely being acquitted or being found not guilty is not, in and of itself, evidence that you were prosecuted maliciously. This was emphasised in the case of Nzoia Sugar Company v Collinsus Faugututi (Civil Appeal no. 7 of 1987) where the Court of Appeal of Kenya held, “A suspect who is acquitted of a criminal case is not sufficient ground for filing a civil suit to claim damages for malicious prosecution or false imprisonment. Evidence of spite, ill-will, lack of reasonable and probable cause must be established.” This article looks at some of the acts and omissions that have been held to constitute lack of reasonable and probable cause and therefore malicious prosecution, by Kenyan courts. Failure to use available sources of information In Thomas Mutsotso Bisembe v Commissioner of Police & Another (2013) eKLR, the plaintiff, Mr Bisembe had been arrested and charged with the offence of intention to defraud and obtaining money by false pretences. He was later released for lack of evidence implicating him. This was after he had spent 8 months in custody, during which his case kept being adjourned at the behest of the prosecution. Mr Bisembe contended that the action to arrest and charge him was based on false, fabricated and malicious charges by the police. As a result, he said, his business had suffered as well as his family and that while in remand, he suffered mental torture, stress and loss of reputation, credibility and friends as his reputation was deformed, dented and destroyed. Because of this, he sought damages.
Unless and until the common law tort of malicious prosecution is abolished by Parliament, policemen and prosecutors who fail to act in good faith, or are led by pettiness… cannot be allowed to ensconce themselves in judicial immunities when their victims rightfully seek recompense…It turned out that the investigating officer who had arrested Mr Bisembe had informed him that he was just told to arrest him by his (the officer’s) superiors. According to the charge sheet he stole Sh18,000,000, yet he did not know the complainant. Mr Bisembe was unaware that there was a complainant though the charge sheet indicated that the complainant was one Peter Muindi. In deciding the matter in favour of the claimant, the court held: “…The mere fact that a complaint is lodged does not justify the institution of a criminal prosecution. The law enforcement agencies are required to investigate the complaint before preferring a charge against a person suspected of having committed an offence. In other words, the police or any other prosecution arm of the government is not a mere conduit for complainants. The police must act impartially and independently on receipt of a complaint, and are expected to carry out thorough investigations which would ordinarily involve taking into account the versions presented by both the complainant and the suspect…where the police deliberately decide not to take into account the version of the suspect and act on a story which turns out to be improbable and which no ordinary and prudent and cautious man would have relied upon, that failure may constitute lack of reasonable and probable cause for the purposes of malicious prosecution…neglect to make a reasonable use of the sources of information available before instituting proceedings would be evidence of want of reasonable cause and also malice. It is not required of any prosecutor that he must have tested every possible relevant fact before he takes action. His duty is not to ascertain whether there is a defence, but whether there is a reasonable and probable case for prosecution. Circumstances may exist in which it is right before charging a man with misconduct to ask for an explanation…” Thus, the court found that Mr Bisembe had been prosecuted maliciously and awarded him Sh800,000 in general damages. Failing to terminate proceedings In the case of Samuel Kiprono Chepkonga v Kenya Anti-Corruption Commission and Another (2014) eKLR, the plaintiff, who was the director of the Communications Authority of Kenya, was arrested for allegations of abuse of office, which forced him to resign. He was subsequently charged with the said offence, which he claimed was malicious, because he was arrested without warrant, not allowed to record a statement or afforded an opportunity to engage an advocate despite his request to do so. The trial lasted three years and the plaintiff was eventually acquitted. The plaintiff contended that that the defendants’ actions were actuated by malice, and claimed from the defendants the amount he had lost in salary and allowances during the period of the trial. According to the plaintiff, the evidence of malice was that he was taken to court without evidence of loss. One of the questions before court for determination was whether the said prosecution was malicious. It turned out that the person who had falsified documents relating to the purchase of a plot, and for whose actions the plaintiff was being prosecuted, did not act on anybody’s instructions. Further, even the investigation officer admitted in the proceedings that he never connected the plaintiff with the purchase of the plot in question. Also, the decision to purchase the plot was a decision of the corporation’s board, yet the corporation members were not charged. The court further found that during the trial, evidential inconsistencies had been brought to the attention of the prosecutor, who, regardless, proceeded with the prosecution. It was held that insistence to proceed with prosecution where it is clear there is insufficient evidence to mount a successful prosecution would be evidence of malice. Justice George Odunga held, “Where the prosecution witnesses themselves in the course of the prosecution give exculpatory evidence with respect to the plaintiff and the attention of the prosecutor is brought to the same yet no action is taken to terminate the prosecution, it is my view that the prosecution, at least from that point in time becomes malicious…it is therefore my conclusion that defendants had no reasonable and probable cause for charging the plaintiff hence their action to do so was actuated be malice.’ The court awarded the plaintiff Sh4,000,000 as general damages for malicious prosecution. It must be remembered that where a plaintiff conducts himself in a manner that raises suspicion, they will not succeed in an action for malicious prosecution. This is demonstrated by the case of Dr Lucas Ndungu Munyua v Royal Media Services & Another (2014) eKLR. In this case, the claimant, a medical doctor, had been prosecuted on charges of attempted abortion contrary to Section 158 of the Penal Code. The doctor was eventually found not guilty of the charge and he subsequently instituted a suit for malicious prosecution. From the evidence adduced, the police invaded Dr Munyua’s clinic, situated in Kayole, accompanied by a journalist investigating purported illegal abortion practices in Kenya. The police arrested Dr Munyua and a patient by the name of Christine Wanja who, at the time, happened to be at the clinic. Despite the fact that Ms Wanja was found not to have been pregnant, the police insisted on prosecuting Dr Munyua. Further, the police inquiry confirmed that he was a registered medical practitioner. Because of these factors, Dr Munyua claimed, the actions of the police were actuated by malice. However, the court held that the plaintiff had failed to prove the ingredients of malicious prosecution. This was because, the court found, the plaintiff had on the day of arrest conducted himself in a manner that raised suspicion, including closing entrance to the clinic so that the police had to jump over to get in. The learned judge said, “The conduct of the plaintiff of chaining the entrance to the clinic and declining to open the same, coupled with the evidence of pungent smell as well as the furious flushing of the toilet may have reasonably led the police to believe that a crime had been committed or was about to be committed. The plaintiff conducted himself in a manner which raised suspicion that the activities of the clinic were up to no good.” Conclusion Though there are certain acts and omissions that impute malice in prosecution, no general rule can be laid down, and the court will have to consider the circumstances of each case individually. However, the guiding objective ought to be the safeguarding of the judicial system from abuse by unscrupulous litigants. As was stated by Justice Ojwang in Thomas Mboya Oluoch &Another v Lucy Muthoni Stephen &Another (Nairobi HCCC no. 1729 of 2001), “Unless and until the common law tort of malicious prosecution is abolished by Parliament, policemen and prosecutors who fail to act in good faith, or are led by pettiness, chicanery or malice in initiating prosecution and in seeking conviction against the individual, cannot be allowed to ensconce themselves in judicial immunities when their victims rightfully seek recompense… I do not expect that any reasonable police officer or prosecution officer would lay charges against anyone on the basis of evidence so questionable and so obviously crafted to be self-serving.”