Malicious prosecution in Kenya: Basis for liability
When Sue’s ex-husband Joe discovers she is having an affair with his accountant Jimmy, he becomes very angry. Joe decides to get revenge on Jimmy by claiming Jimmy embezzled money from his account by lodging a complaint with the police. Jimmy is arrested and charged with the offence of stealing by servant which upon conviction, he could have been imprisoned for a term of seven years. At trial, nearly a year later, it is determined that there is virtually no evidence that Jimmy is guilty of any wrongdoing, and that Joe filed the case out of malice. Jimmy is acquitted. Unfortunately, the accusations and investigation into the case caused Jimmy to lose his job.
Jimmy then files a suit against Joe for malicious prosecution in Kenya. At the end of the trial, the court finds in favor of Jimmy, and awards him damages of KES2.5M for malicious prosecution and KES1M for the damage to his professional reputation.
The characters in this story, and the story itself, are entirely fictitious.
In a real South African case of George Magwabeni v Christopher Liomba (198/2013)  ZASCA 117, the facts of the case are that as follows: Liomba’s was employed by Magwabeni to provide certain services at Magwabeni’s hotel. Magwabeni allowed him to stay on the premises, in
terms of a lease, during the duration of the employment contract. A dispute arose between Magwabeni and Liomba, as a result of which Magwabeni terminated Liomba’s services and the lease and told him to vacate the premises by 15 December 2008. Liomba refused to do so because, according to him, he had not been paid for his work.
While the dispute was on going, one of Magwabeni’s employees reported damage to the hotel and said she had seen Liomba in the vicinity of the damage. Magwabeni inferred that Liomba was the person responsible for the damage. On 17 December 2008, following the employee’s report, Magwabeni laid a charge of trespassing and malicious injury to property against the Liomba with the police and asked the police to assist him with the eviction of Liomba from the premises. The police arrested the respondent and charged him with malicious injury to property. After Liomba was released, he sued for damages in respect of malicious prosecution.
The High Court upheld Liomba’s claim for malicious prosecution stating that the institution of criminal proceedings against Liomba was not based on any reasonable suspicion and had more to do with Magwabeni’s want to evict Liomba, rather than the damage to his property.
On the appeal the Supreme Court of Appeal (“SCA”) reviewed the judgment of the Limpopo Local Division that found Magwabeni liable for damages for malicious prosecution. The case arose from a complaint that he had lodged against Liomba with the SAPS that was followed by Liomba’s arrest and detention. Liomba was charged following the complaint, but the charges were
subsequently withdrawn and he was released after having spent a week in detention.
The issue before the SCA was whether Magwabeni acted maliciously when he laid a charge of trespassing and malicious injury to property against Liomba.
The SCA defined malicious prosecution as the wrongful and intentional assault on the dignity of a person encompassing his good name and privacy.
The SCA went further to state that, to succeed in a case of malicious prosecution, four things must be shown. First, the defendant set the law in motion (instigated or instituted the proceedings).
Second, the defendant acted without reasonable and probable cause. Third, the defendant acted with malice (or animo injuriandi – the wrongful intention to defame or injure another’s reputation or personality). Four, the prosecution failed.
It further stated that the test for absence of reasonable and probable cause contains both a subjective and objective element, meaning there must be both actual belief on the part of the defendant and also that belief is reasonable in the circumstances.
Based on the above, the SCA asked whether Magwabeni made statements to the police regarding these allegations without an honest belief founded on reasonable grounds that they were true. The evidence showed three things, first, there was a dispute between the parties, second, simultaneously, Magwabeni discovered that his property had been damaged, and third, after
Magwabeni’s employee informed him that she had seen Liomba near the electricity distribution box, Magwabeni inferred that Liomba was the person responsible for the damage as he was the only other person with access to the box.
The court held that the Magwabeni had reasonable and probable cause for the prosecution of Liomba regarding the trespassing claim, as in his mind, he honestly believed that he had a case for trespassing against the respondent when the latter refused to vacate his premises upon the termination of the lease. With regards to the malicious injury to property claim, the SCA held that
Magwabeni believed that Liomba was responsible for the damage. The SCA therefore found that Magwabeni was not malicious when he instituted criminal charges against Liomba.
These two cases are an illustration of what malicious prosecution is and what is not.
As was held by Ojwang, J (as he then was) in Thomas Mboya Oluoch & Another vs. Lucy Muthoni Stephen & Another: “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. To deploy the State’s prosecutorial machinery, and to engage the
judicial process with this kind of litigation, is to annex the public legal services for malicious purposes”.
A 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 which the question as to whether there was reasonable and probable cause for the prosecution is primarily to be judged on the basis of objective test.
From the above, any person who initiates a prosecution can be held liable for the same. However, the initiation of criminal proceedings which is terminated in the plaintiff’s favour, does not itself suffice to ground a plaintiff’s case for malicious prosecution. Malicious prosecution, as the name implies, is an intentional tort that requires proof that the defendant’s conduct in setting the criminal process in motion was fueled by malice.