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
• 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
neighbourhood.
• 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
• (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 tied, 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.