REPUBLIC OF KENYA

IN THE CHIEF MAGISTRATE’S COURT AT NAROK

CIVIL SUIT NO. 13 OF 2017

LELIAN SENKENTO………………………………………………………1ST PLAINTIFF

TETEYION SEKENTO……………………………………………………2ND PLAINTIFF

TARETON SEKENTO……………………………………………………3RD PLAINTIFF

VERSUS

TOPIKO OLE MUNTET………………………………………………1ST DEFENDANT

SAMAIRE OLE MUNTET……………………………………………2ND DEFENDANT

THE HON. ATTORNEY GENERAL…………………………………3RD DEFENDANT

JUDGEMENT

This mantle is being brought by the plaintiffs against the Defendants via a plaint dated
27/02/2017. The suit is brought by the plaintiffs against the defendants as a result of a
judgment rendered on 28/10/2011.

That as a result of the judgment that led to the dismissal of the criminal case no. 1082 of
2008, the plaintiff seeks to be compensated claiming that the arrest and consequent
arrangement in court was actuated by malice and as a result the plaintiff was greatly injured.

The plaintiff therefore brought this suit seeking the court to enter judgment against the
defendants, jointly and severally. In particular the plaintiffs, pray for the following:

(i). Special damages, kshs 108,000

(ii). General damages
(iii). Cool of the suit

In response to the plaint, the defendants via a defense dated 7/04/2017 denied all the
allegations from the plaintiffs same for paragraph 1,2,3,11 and 12 of the plaint.
In his submission dated 23/11/2021, the 3rd defendant submitted that the plaintiff is time
barred and cited section 3(1) of the public Authorities limitations Act and section 4(2) of the
Limitations of Actions Act in support of his claim. The 3rd defendant also cited a number of
authorities defending the time barred assertion. The 3rd defendant in his submissions also
claimed that the plaintiffs were not maliciously prosecuted and urges the court to dismiss the
plaintiff’s claim of special and general damages.

The same assertion was adopted by the 1st and 2nd defendant via the submissions dated
29/11/2021.

From the oral reading and consideration of the evidence and submissions from the parties, the
issues for consideration before the court are as follows

(i). Whether the plaint was time barred

(ii). Whether the prosecution against the plaintiffs was maliciously instituted.
(iii). Whether the plaintiffs ought to be awarded damages.

Issue 1

Whether the plaint was time barred

The 3rd defendant claimed that the suit herein is time barred and sought to rely on section 3(1)
of the Public Authorities limitations Act which reads thus:

“No proceeding founded on tort shall be brought against the government as a local authority
after and of 12 months from the date on which the cause of action accrued?”

The issue at hand forms the basis of continuation of the suit and the court via an order dated
28th February 2017 allowed the applicants herein to file this suit. The court is now being
placed in a position of further determining whether the suit herein is time barred and ought to
be dismissed.

On the onset, this suit is an action on tort law. Secondly, this action is being brought against
the defendants as a result of a criminal case that was determined and judgment delivered in
favour of the plaintiffs herein.

In the case of Kiamokama/ Tea Factory Co. limited v Joshua Nyakoni (2015) eKLR, the
honourable court relied on the statement JA Nicholas Kiptoo Arap Korir Salat V. IEBC & 6
others 92013) eKLR where he stated:-
“ I am not in the least persuaded that Article 159 of the constitution and the oxygen
principles which both command courts to do substantial justice in a efficient,
proportionate and cost-effective manner and to eschew defealist technicalities were ever
meant to create an anarchical free-for all in the administration of justice. This court,
indeed all courts must never provide succour and cover to parties who exhibit scant respect
for rules and timelines. Those rules and timelines serve to make the process of judicial
adjudication and determination fair, just, certain and even-handed. Courts cannot aid in
the lending or circumnutating of rules and a shifting of goal posts for while it may seem to
and one side it unfairly harms the innocent party who strikes to abide by the rules. I
apprehend that it is in the even- handed and dispassionate application of rules that courts
give assurance that there is a clear method on the manner in which things are done so that
outcome, can be anticipated with a measure of confidence, certainty and clarity where
issues of rules and their application are concerned”

Section 4(2) of the Limitation of Actions Act: “ An action founded on tort may not be
brought after the end of 3 years from the date on which the cause of action accrued.

In the case of Royal Media Services Ltd v Valertine Mugure Maina & Another (2019)
eKLR, Justice Ngaa Jairu explained section 4(2) of the limitation, of Actions Act as follows:-

“before I conclude, I must mention that section 4(a) is couched in such terms that the trial
court is left with discretion to extend the lime within which a claimant can file suit for
damages claims it may be that the claimant was under disability of some sort and therefore
he could not for that reason file the claim within the statutory period”

In the case of Beth Wambui Mugo v Charles Hornsty & 3 others 2019 eKLR, the court held:
“I wish to first address the applicability of section 27 and 28 of the limitation of Action Act. A
keen reading of the said provision, recalls an extension of time to file an action out of time
can only be brought in strict instances of tort and more specifically in an action for
negligence, nuisance or a bread of duty.”

From the foregoing, it is quite clear that the court has a strict mandate of extending time for
an action filed out of time.

The plaintiff, herein were granted leave by court via an order 28/02/2017 which indicates that
the plaintiff applied for the extension of time in reliance of section 28 of the said Act which
reads thus;
“ Application for leave of court under section 27 of the Act, …. Where such an application is
made before the commencement of a relevant action, the court shall grant leave in respect of
any cause of action to which the application relates.

It is quite clear that paragraph 4 of the plaint dated 27/02/2017, the plaintiffs file a suit out of
time vide leave obtained via Narok chief Magistrate Civil Application No. 26 of 2016. In this
regard, the applicant herein met the requirements of sub-section 2 of section 28 of the Act.

From the foregoing, the assertion by the 3 rd defendant that the court granted leave of
extension out of time lacks merit and should be dismissed.

ISSUE 2

Whether the prosecution against the plaintiff was maliciously instituted

The second defendant seeks this honourable court to dismiss the plaintiffs claim that the
criminal suit against them was maliciously prosecuted.

It is undisputed that there was criminal case against the defendant that was determined and
judgment rendered on the favor. The court made that decision on the basis that the
prosecution could not prove the case beyond reasonable doubt.

In the criminal case no. 1082 of 2008, the defendants in the current case were the one who
made a report to police that the plaintiffs herein disobeyed a lawful court order and in
addition unlawfully cut down trees for burning charcoal. The plaintiff’s herein were arrested
and according to the plaintiff statement dated 27/02/2017, the plaintiffs were subjected to
entire criminal proceedings and by a judgment delivered on 28/10/2011, the plaintiffs were
acquitted. The court in judgment also found that there was animosity between the 2 families
hence the criminal suit.

The plaintiffs under paragraph 8 of the plaintiff therefore assert that the arrests and
consequent arrangement in court was actuated by malice and as a result, the plaintiff’s were
greatly injured.
In case of West Bengal Stae Electricity Board V Bilip Kumar Ray the court defined the
term malicious prosecution in the following words:-

“A judicial proceeding instituted by one person against another, from wrongful or improper
motive and without probable cause to sustain it is a malicious prosecution”

The court in the case identified the following as elements of malicious prosecution:

(i) Prosecution by the defendant

(ii) Absence of reasonable or probable cause
(iii) Defendant acted maliciously
(iv) Termination of proceedings in the favour of the plaintiff.
(v) Plaintiff suffered damaged as a result of prosecution

In the case of James Kahindi Simba v Director of Public Prosecution and 2 others(2020)
eKLR). The court in its finding, analysis and determination said the following:

“The tort of malicious prosecution is committed in circumstances where a

defendant(s) causes the arrest and prosecution of the plaintiff or claimant without
reasonable or probable cause. The proceedings so the instituted terminate in
favour of the plaintiff”

The court further asserted that, the commonly accepted ingredients of malicious prosecution
are as follows:

(i) The prosecution ought to have been instigated by the defendants.

(ii) That the matter was finalized in the plaintiff’s favour.
(iii) The prosecution or its continuance was actuated by malice on the part of
the defendant

It is undisputed that the plaintiff was arrested by the police, and later availed in court and that
it is the defendant who caused the arrest and prosecution of the plaintiff. This is clearly
demonstrated by the plaintiffs via the exhibit LS.1 (criminal proceedings of Cr. Case number
1082 of 2008.It is also undisputed that the criminal proceeding terminated in favour of the
plaintiff. The plaintiffs were acquitted in terms of section 215 of the Criminal Procedure
Code.
However, the mere fact that a person has been acquitted of criminal charges does not
necessarily entail malice on the part of the defendant. In the case of James Karuga Kuru v
Joseph Mwamburi and 3 others Nrb C.A No. 171 of 2009 the court held that:

“ To prosecute a person is not prima-facie tortious but to do so dishonestly or unreasonably.

The question that the court has to ponder is whether the prosecution as its continuance was
actuated by malice on the part of defendants”

In the matter at hand, the defendants are placed in a situation that seeks them to show that
they had honest beliefs which were based on reasonable grounds that the plaintiffs had
committed the offence in issue and that the institution of proceedings was justified. The 3 rd
defendants in this matter via the submission dated 23/11/2021 relied on section 24 of the
National police service Act that there was no malice thereof

The 1st and 2nd defendant in their submission dated 29/11/2021 asserted that they are the
registered owners of Cismara/ EnareBokesi/ 13 and 14 and that after securing court orders to
stop the plaintiffs from destroying their land, the plaintiffs continued with the destruction.
They reported to the police who after inquiry acted on that report and arrested the plaintiffs.

In this regard therefore, the court is being placed in a situation of balancing the forces in the
constitution under article 245 which gave recognition to the police to investigate crimes and
also provisions of section 24 of the National Police service Act

The National police service is designed to deliver its mandate on behalf of the state according
to the National values and principles of governance under article 10 of the constitution. As
such, and with basic constitutional structure of the constitution, it can hardly be denied that
the entrance of a criminal trial determined in favour of the plaintiff and the bounds of civil
litigation under tort of malicious proves so controversial.

After examining the submission and authorities cited by the parties herein, the court fondly
arrives at this conclusion;

(i). That the defendants herein acted on the actions of the plaintiff in instituting criminal
proceedings.
(ii). That the prosecution relied on the information tendered by the witnesses who are
defendants herein.
(iii). That there was no malice on the part of the prosecution and that they acted within the
confines of the law

The plaintiffs failed to provide any shred of audience which shows malicious intent on the
part of the defendant.

In high of the foregoing, there was a reasonable and probable cause for arrest and prosecution
of the plaintiffs. The purpose of the prosecution was not personal but rather for the public
interest or benefit.There is no evidence of improper motive that the defendants had when they
decided to arrest and prosecute the plaintiff as well as what they stood to gain from it.

From the above analysis, finding cannot be made in favour of the plaintiff since he failed to
establish the vital ingredient of malicious intent.

ISSUE 3

Whether the plaintiff ought to be given damage.

The plaintiffs have prayed for ksh 108,000/= special damages. Special damages have been
dissected as follows

(i). Professional fees in defending the case ksh. 30,000

(ii). Frauding expenses to and from Narok ksh. 400x35 attendances x3 people= ksh..
39,000
(iii). Subsistence ksh. 300x35 attendances x3 people = ksh. 39000

From the onset the sum prayed for by the parties has been arrived through a wrong arithmetic
formula.

400x35x3= 42,000 and not 39,000 as indicated in the plaint.

300x35x3= 31,500 and not 39,000 as indicated in the plaintiff

The sum would therefore have been 42000 + 31500+ 30000= 103,500

However, unfortunately, the infringement complained of arrest, indictment and malicious

prosecution should be viewed in its true perspective that the necessary ingredients were never
discharged by the plaintiff.