INTENTIONAL

INTERFERENCE WITH
THE PERSON
• Any intentional interference with a person is a
trespass.
• Any form of trespass is actionable per se
I. ASSAULT

• Classical definition: an attempt to… beat another

without touching him; as if one lifts up his cane, or his
fist, in a threatening manner; or strikes at him, but
misses him; this is an assault… and therefore, though no
actual suffering is proved, yet the party injured may
have redress by action of trespass vi et armis; wherein
he shall recover damages as a compensation for the
injury.” by Blackstone, vol. III, “Of Private Wrongs”, Ch.
8, I, 2-3:
• an assault is said to be any act by which a
person intentionally or recklessly causes
another to apprehend immediate and unlawful
violence.
• Defendant’s conduct must be shown to have
created a reasonable apprehension of contact
or injury see Stephens v. Myers (1830) 4 C & P
349; 172 ER 735
• P and D were in a meeting. They sat at different places
with about six people in-between them. The defendant
became rather rowdy and interrupted that proceedings
time and again whereupon it was decided by majority
vote that he be removed from the meeting. He became
angrier and declared he was going to evict the chairman
(i.e. the P) from the meeting.
• He shot up from his seat and proceeded menacingly with
his fists clenched toward the chairman. He was stopped
by a person on the third seat from the chairman. He
was not so near for any blow to have reached the
chairman but it was established that he had the
intention to strike him. It was argued for the defendant
that no assault had been committed since the defendant
was not in a position to execute his threat considering
that he had been stopped well before he reached the
plaintiff.
• D was held liable in assault notwithstanding
that he had been stopped before he reached
P. This is because he not had the intention to
cause violent contact with P he also had the
means for doing so
May an assault arise where the threat
is rendered by words and P and D are
not in close proximity?

• See R v Ireland: R v Burstow [1998] AC 147

(House of Lords)
• One of the issues was whether the maker of
silent telephone calls could be convicted of a
criminal offence which required the accused
to have committed an assault against the
victim. It had been argued for the appellants
that an assault can only arise out of a gesture
and not words.
Lord Steyn rejected this
proposition and stated that:
• “A thing said is also a thing done. There is no reason
why something said should be incapable of causing an
apprehension of immediate personal violence e.g. a man
accosting a woman in a dark alley saying ‘come with me
or I will stab you’. I would therefore reject the
proposition that an assault can never be committed by
words.”
Lord Hope of Craighead stated in agreement that:

• … it is not true to say that mere words or

gestures can never constitute an assault. It all
depends on the circumstances. If the words or
gestures are accompanied in their turn by
gestures or by words which threaten
immediate and unlawful violence, that will be
sufficient for an assault. The words or
gestures must be seen in their whole context.”
• Where the defendant issues conditional threats i.e. that
he/she would inflict injury unless the plaintiff did
something or the other, an assault may be committed.
See Read v. Coker (1853) 13 CB 850, 138 ER 1437 the
plaintiff was told to leave premises where he conducted
his business. He refused and the defendant collected
together some of his workmen, who stood near the
plaintiff with their sleeves and aprons, tucked up and
told him they would break his neck if he did not leave.
• The plaintiff left and sued for assault. The court held
that there was an assault since there was a threat
indicating an intention to injure the plaintiff and the
defendant had the ability to inflict that injury.
• Tuberville v Savage (1669) 1 Mod 3, 86 ER 684; the
defendant put his hand on his sword and declared to the
plaintiff: “If it were not assize time I would not take
such language from you.” It was held that no assault
had been committed since no apprehension of
immediate injury was evident.
B. BATTERY

• Blackstone defines battery as “the unlawful beating of

another.”
• Any form of touching without the plaintiff’s consent is a
battery. Whether or not it amounts to culpable conduct
will depend on the circumstances. E.g. punching or
slapping another person, striking someone with a stick,
spitting in their face, pulling off their clothing etc
• Being a trespass it is actionable per se
• There must be an element of hostility in the
defendant’s act. E.g. Wilson v Pringle [1987]
QB 237
• On 4th December 1980 the plaintiff and
defendant were both schoolboys aged 13. On
that day at school the plaintiff had a fall which
caused an injury to his left hip, from which he
still suffered at the time of the suit.
• The plaintiff alleged that the Defendant jumped on him,
causing him to suffer personal injury, loss and damage. The
plaintiff alleged that the defendant had committed a
trespass to the person of the Plaintiff and/or were caused
by the Defendant's negligence. The plaintiff stated that the
defendant jumped on him intentionally. The defendant
argued that there was no intention to inflict injury and
hence no battery could be proved. The plaintiff argued
that the intentional application of force whether or not
injury was intended was sufficient to amount to the tort.
• Croom-Johnson LJ held that in a battery there must an
intentional touching or contact in one form or another of
the plaintiff by the defendant which touching must be
proved to be hostile. What amounts to hostility is a
question of fact depending on the surrounding
circumstances. E.g. where a police officer applies
unnecessary force while executing an arrest, a battery
would have been committed where the plaintiff suffered
injury.
Is every form of touching a battery?

• No; certain forms of battery may be excused

by law
• See e.g. Njareketa v Director of Medical
Services (1950) 17 EACA 60 where a surgeon
amputated a patient’s leg who withdrew his
consent after having initially accepted the
operation. It was established that had the
operation not been performed the patient
would have died.
• Was there trespass?
• Yes
• Except that the court reduced the damages
due to the patient to one cent only (nominal
damages)
• Sir Barclay Nihill while speaking for the court
held that while indeed there was trespass,
such was of a technical nature that it did not
entitle the appellant to the damages he had
been granted in the High Court.
C. DISTINCTION BETWEEN
ASSAULT AND BATTERY
• Assault and battery are ultimately related and an assault
may be considered as an incomplete battery. E.g. to
throw water at a person may be an assault but if any
drops on him it becomes a battery. Pulling a chair on
which a person is about to sit is an assault, until he hits
the floor, for while he is falling he reasonably expects
that the withdrawal of the chair will result in harm to
him. When he comes into contact with the floor it is a
battery.
• both are said to be actionable per se-i.e. without proof
of damage since they are trespasses to the person.
 Marube v Nyamuro [1983] KLR 1

• The appellant a schoolboy aged 14 claimed damages against his

teacher for injury allegedly inflicted by the latter while in the
course of imposing corporal punishment. The defendant, a
teacher had used a rope which hit the plaintiff in the eye. The
injury resulted in an eventual loss of the eye. The defendant
had suggested that the injury was accidental and that
therefore neither assault nor battery could be proved. The
court found that the defendant injured the plaintiff while
administering corporal punishment and that the injury was so
intentionally inflicted.
 Hancox J in his obiter dictum considered
the distinction between assault and battery

“While assault is frequently the generic term used to cover

both assault and battery, they are two distinct torts, the
one being an overt act indicating an immediate intention to
commit a battery, and a battery being the direct
application of force to the person of another without lawful
justification; and that includes intentionally to bring any
material object into contact with another person. Both
constitute that species of trespass known as trespass to the
person.”
D. FALSE IMPRISONMENT

• According to Blackstone (ibid.) the tort of false

imprisonment consists in two elements: 1), that the
plaintiff be detained and 2) that the detention be
unlawful. Generally every confinement of the person is
an imprisonment regardless of the place of the
confinement-prison, house, street etc. It is false when
it is not based on sufficient authority.
• it is thus the infliction of bodily restraint which is not
expressly or impliedly authorized by the law.
• Imprisonment was defined in the case Meering v.
Grahame-White Aviation Co. Ltd. (1920) 122 LJ 44 to
mean “the restraint of a person’s liberty whether it is in
the open field or in the stocks or cage or in man’s own
house, as well as in the common gaol.”
• imprisonment is committed even if the plaintiff did not
know he was being detained. In the Meering case the
defendant suspected the plaintiff to have stolen a
container of varnish. Two of the defendant’s police
asked him to go to the defendant’s office. He agreed
and was taken or invited into the waiting room while the
police remained in the neighborhood.
• When he sued for false imprisonment the defendant
claimed that he was at that time perfectly free to go
where he liked but that he did not desire to go away. It
was held the defendants were liable because from the
moment he came under the influence of the police, the
plaintiff was no longer a free man. Lord Atkin stated
that: “It appears to me that a person could be
imprisoned while he is asleep, while he is in a state of
drunkenness, while he is unconscious and while he is a
lunatic.”
• is this too strict a standard?
• What would justify such a rule?
• the restraint must be complete-i.e. there must be total
restraint of motion in every direction.
• See Bird v. Jones (1845) 7 QB 742, 115 ER 668 D wrongly
enclosed part of a public footpath on a bridge by putting
seats in it for use by spectators of a regatta-a boat race.
He charged for admission into the enclosure. The
plaintiff insisted on passing through without paying the
charge. On the defendant’s instruction, two police
officers prevented the plaintiff from going forward but
advised to go back the way he had come.
• He declined to do so and remained in the enclosure for
over half an hour then attempted to force his way
though. He was arrested whereupon he sued for
wrongful arrest. To decide this question the court had
to determine whether he had been falsely imprisoned
during the period he had been obstructed by the
policemen.
• Held: no false imprisonment when the
defendant merely obstructs the plaintiff’s
passage and leaves him at liberty to stay
where he is or go in any other direction if he
pleases. Imprisonment is a total restraint of
the liberty of the person for however short a
time and not a partial obstruction of his will
regardless of the inconvenience caused to the
person.
• What if there’s a means of leaving but the
plaintiff fails to leave?
• What if the means of leaving/escaping is
unreasonable? Dangerous?
E. MALICIOUS PROSECUTION

• A claim for malicious prosecution arises when the

defendant causes the arrest of the plaintiff and his
prosecution when there is no reasonable cause and when
the defendant’s act is actuated by malice.
“In order to succeed in a claim for malicious prosecution
the plaintiff must show that:- a) The prosecution was
instituted by the defendant; b) The prosecution
terminated in the plaintiff’s favour; c) The prosecution
was instituted without reasonable and probable cause;
d) The prosecution was actuated by malice.” See
Gichanga v BAT Kenya Ltd (1989) KLR 352
• The plaintiff was an employee of the defendant.
Following a complaint relating to lost money, made by a
fellow employee he was arrested and charged with the
offence of stealing by servant c/s 281 of the PC. The
case was however withdrawn under section 87 of the
CPC but by this time the plaintiff’s employment had
been terminated. The plaintiff sued for malicious
prosecution among others. It was established that it
was the plaintiff and his colleague who had reported the
loss of the money to the police. The defendant was not
established as having invited the police.
• the 1st element was not proved as the court held that:
The prosecution of the plaintiff by the Police regarding
the Nanyuki incident was outside the workings of the
defendant company. In fact, having recorded statements
from plaintiff and Arunga, they decided to release one
and charge the other. It is only the Police who know why
they acted as they did…. there was [no] malice on the
part of the defendant who in fact had nothing to do with
the plaintiff’s arrest and subsequent charge”
• The mere making of a complaint to police is not
evidence that the prosecution has been set in motion by
the defendant. See Gitau v AG [1990] KLR 13
• P had been arrested at 1am outside a night club by two
police officers who having observed him fumbling with
the door of his car which he was attempting to open
thought that he was drunk. He was taken to the police
station where a doctor conducted some tests and
concluded that the plaintiff was not drunk.
• He was nevertheless locked up in a police cell for two
days after which he was informed by the officer in
charge that a charge of being drunk and disorderly
would be preferred against him.
• At the subsequent hearing the court dismissed the
charge without calling evidence from the accused. In
the civil suit, the court found that the defence witnesses
had made up evidence to attempt to justify the
plaintiff’s arrest.
• The court however dismissed the claim for malicious
prosecution. The court restated the rule on malicious
prosecution thus: “To succeed on that claim the plaintiff
must first establish that the defendant or his agent set
the law in motion against him on a criminal charge.
“Setting the law in motion” in this context has not the
meaning frequently attributed to it of having a police
officer take action, such as effecting an arrest…
• It means being actively instrumental in causing a person
with some judicial authority to take action that involves
the plaintiff in a criminal prosecution. An example
would be where a person prefers a criminal charge
against another before a magistrate. Secondly he who
sets the law in motion must have done so without
reasonable and probable cause.”
• The court reasoned that in the instant case even though
it was the officer in charge who set the law in motion,
there was no proof that the officer acted without
reasonable and probable cause. The facts that were
given to the officer in charge were such that any
reasonable police officer would have taken the measures
that he had taken, in this case, preferring the charges
against the plaintiff.
 James Karuga Kiiru v Joseph Mwamburi and Others, Civil Appeal
No. 171 of 2000

• The appellant sought damages for false imprisonment,

malicious prosecution and loss of business. The respondents
were police officers. They received information showing that
the appellant might be involved in poaching activities. They
proceeded to arrest the appellant whom they detained for 14
days while they conducted their investigations.
• The defendants did give any evidence but the trial court
dismissed the appellant’s claims on the ground that: “the
arrest and prosecution complained of were based on a
reasonable suspicion that a criminal offence had been
committed and were lawfully carried out by officers entrusted
with maintenance of law and order.”
Nzoia Sugar Co. Ltd. v Fungututi [2002] KLR 1

• An employee of the appellant company reported theft of

a gas cooker by the respondent. After some
investigation the police arrested and charged the
respondent with the offence of stealing by servant. The
court found that the respondent had no case to answer
and discharged him. The respondent sued for malicious
prosecution and the trial court ruled in his favour. It was
argued for the appellant that the court’s finding was
wrong since there was no sound reason for holding that
the appellant had no reasonable or probable cause for
making the complaint to the police and that there was
no evidence of malice.
• The CA allowed the appeal on the ground among others
that there was no proof of malice or ill-will on the part
of the appellant to sustain the tort of malicious
prosecution. Justice Apaloo stated: “In my opinion the
case of malicious prosecution must founder on the
absence of malice or ill-will. The only reason why the
respondent claimed he was maliciously prosecuted was
because the prosecution terminated in his acquittal… it
is trite that acquittal per se on a criminal case charge is
not sufficient basis to ground a suit for malicious
prosecution. Spite or ill-will must be proved against the
prosecutor.”
• Samuel Ndirangu v Patrick Wachira Nderitu High Court Civil
Appeal No. 88 of 2001 (meaning of putting prosecution in
motion)
• The fact that a criminal case instigated by the
defendant ends up in the acquittal of the plaintiff does
not necessarily imply that the prosecution was
malicious. See KPLC v. David Were Masibo HC Civil
Appeal No. 301 of 1992; Respondent contended that the
appellant maliciously and without reasonable and
probable cause laid a false information with the Police
which caused the arrest, detention in the Police Cells
for four days and subsequent prosecution of the
Respondent.
• The Respondent was convicted by the trial Court and
later acquitted on appeal but after having served the
sentence of 18 months imprisonment. The respondent
thereat sought damages for false imprisonment and
malicious prosecution. The trial court had found in
favour of the respondent but on appeal to the High
Court, the appellant succeeded and the suit was
dismissed with the judge stating that:
“It is without doubt the complaint made by the appellant
that made the police commence investigations and
which investigations lead to the arrest of the respondent
and subsequent process. It cannot however be that
making a complaint to the police without proof renders
the complainant liable for malicious prosecution. The
claim for malicious prosecution was not proved against
the appellant…”
F. DEFENCES TO INTENTIONAL TORTS AGAINST THE PERSON

• Reasonable condition: no tort is committed where the

defendant prevents the plaintiff from leaving the
defendant’s premises for failure to fulfill a reasonable
condition subject to which he entered those premises.
• Robinson v. Balmain Ferry Co. Ltd. [1910] AC 295 the
plaintiff paid a penny for entry into the defendant’s
wharf from which he proposed to cross a river by one of
the defendant’s ferry boats.
• Since a boat had just gone he was required to wait for 20
minutes before another boat came. He changed his mind
about the crossing and sought to exit the wharf. He was
however required to pay another penny before his exit. He
refused and the defendant declined to let him through
unless he paid. It was held that there was no false
imprisonment. The court stated that: “There is no law
requiring the defendants to make the exit from their
premises gratuitous to people who come there upon a
definite contract which required their leaving the wharf by
another way.”
• Lawful arrest; See the Kiiru and Nzoia Sugar cases
• See section 21 CPC:
• (1) In making an arrest the police officer or other person
making it shall actually touch or confine the body of the
person to be arrested, unless there be a submission to
custody by word or action.
• (2) If a person forcibly resists the endeavour to arrest him,
or attempts to evade the arrest, the police officer or other
person may use all means necessary to effect the arrest.
• (3) Nothing in this section shall justify the use of greater
force than was reasonable in the particular circumstances
in which it was employed or was necessary for the
apprehension of the offender.
• Section 26 (1) (c): A police officer, or other person
authorized in writing in that behalf by the Commissioner
of Police, may stop, search and detain- (c) any person who
may be reasonably suspected of having in his possession or
conveying in any manner anything stolen or unlawfully
obtained.
Section 29 allows the arrest of persons without a warrant:

• A police officer may, without an order from a magistrate

and without a warrant, arrest-
• (a) any person whom he suspects upon reasonable
grounds of having committed a cognizable offence;
• (b) any person who commits a breach of the peace in his
presence;
• (c) any person who obstructs a police officer while in
the execution of his duty, or who has escaped or
attempts to escape from lawful custody;
• (d) any person in whose possession anything is found
which may reasonably be suspected to be stolen
property or who may reasonably be suspected of having
committed an offence with reference to that thing;
• (e) any person whom he suspects upon reasonable
grounds of being a deserter from the armed forces;
• (f) any person whom he finds a highway, yard or other
place during the night and whom he suspects upon
reasonable grounds of having committed or being about
to commit a felony;
• (h) any person whom he suspects upon
reasonable grounds of having been concerned
in an act committed at a place out of Kenya
which, if committed in Kenya, would have
been punishable as an offence, and for which
he is liable to be extradited under the
Extradition (Contiguous and Foreign Countries)
Act or the Extradition (Commonwealth
Countries) Act;
• (i) any person having in his possession without lawful
excuse, the burden of proving which excuse shall lie on
that person, any implement of housebreaking;
• (j) any released convict committing a breach of any
provision prescribed by section 344 or of any rule made
thereunder;
• (k) any person for whom he has reasonable cause to
believe a warrant of arrest has been issued.
Section 34 allows arrests by private persons:

• (1) A private person may arrest any person who in his

view commits a cognizable offence, or whom he
reasonably suspects of having committed a felony.
• (2) Persons found committing an offence involving injury
to property may be arrested without a warrant by the
owner of the property or his servants or persons
authorized by him
3. Consent as a defence

• how does consent arise as a defence to a trespass

against the person?
• See Wilson v. Pringle supra; where it was stated:
Generally speaking, consent is a defence to battery; and
most of the physical contacts of ordinary life are not
actionable because they are impliedly consented to by
all who move in society and so expose themselves to the
risk of bodily contact. So nobody can complain of the
jostling which is inevitable from his presence in, for
example, a supermarket, an underground station or a
busy street;
...nor can a person who attends a party complain if his hand is
seized in friendship, or even if his back is, within reason,
slapped... Among such forms of conduct, long held to be
acceptable, is touching a person for the purpose of engaging
his attention, though of course using no greater degree of
physical contact than is reasonably necessary in the
circumstances for that purpose...”
Consent and medical treatment

• As a general rule, medical treatment even of a

minor nature should not proceed unless the
doctor has 1st obtained the patient’s consent-
whether express or implied.
• What if the patient is not in a position to give
consent?
• See Njareketa (supra)
• In Marshall v. Curry, the plaintiff sought damages for battery
against a surgeon who had in the course of an operation for a
hernia removed a testicle. The surgeon argued that the
removal was essential to a successful operation and that had
he not done so, the health and life of the patient would have
been imperilled because the testis was itself diseased. Held:
removal of the testicle was necessary and that it would have
been unreasonable to put the procedure off until a later date.
• Murray v Mc Murchy [1949] 2 DLR 442, the plaintiff sought
damages against a doctor who had sterilised her w/o her
consent. The doctor had discovered during a caesarean
section that the condition of the plaintiff’s uterus would
have made it hazardous for her to go through another
pregnancy and although there was no pressing need for the
fallopian tubes to be ties, the doctor went ahead with the
procedure. In finding the doctor culpable, the court took
the view that it would not have been unreasonable to
postpone the sterilisation until after consent had been
obtained.
• 4. Necessity as a defence
-see the Murray and Marshall Cases.