Monday, April 14, 2008


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Publication Date: 4/14/2008

Joseph C. Mumo vs Attorney General & another [2008] eKLR (www.kenyalaw.org)
High Court at Nairobi
R. N. Nambuye (J)
February 22, 2008

The High Court recently awarded Sh300,000 damages to one Joseph C. Mumo for malicious and unlawful arrest.

The facts before the court were that on May 19, 2001, Mr Mumo was arrested on the basis of false information by the defendant, Chief Inspector Joseph Gitau, claiming that he (Mumo), while acting in his capacity as former assistant chief of Gatundu North, had falsely sworn a document.

As a result of the information, he was arrested and confined for five days before he was arraigned in court on criminal charges. He was tried and subsequently acquitted due to lack of evidence.

It was Mr Mumo’s contention that as a result of the said false allegations by Inspector Gitau, his reputation was defamed, that he suffered mental anguish and that his credibility was cast into doubt.

He claimed to have attended court 35 times over a span of tow years and 10 months.

It was this that precipitated his claim for general damages and reimbursement of the costs incurred in the criminal proceedings. He claimed it had taken his family great effort to have him arraigned in court for the hearing of his matter.

The plaintiff also joined the Attorney General’s office as a defendant claiming that it had acted on Inspector Gitau’s allegations and as such could not be absolved of blame.

Mr Mumo gave evidence and called witnesses in support of his claim and reiterated the fact that he had been arrested on false information.

In his evidence, he stated the defendant had accused him of falsely swearing a supporting affidavit before Farady Atuti, a person authorized to administer an oath on a matter of public concern. He further claimed the defendant had accused him of harbouring a wanted criminal, Philip K. Kiboi, who had previously been charged with the offence of possessing firearms.

Mr Mumo claimed there had been no foundation upon which the defendant had based his reasonable suspicion or justification that an offence had been committed in order to send his juniors to arrest him.

Denied claims

On cross-examination, Inspector Gitau denied ever having investigated Mr Mumo or that he had come from the same village as Kiboi.

He further denied having accused Mr Mumo of swearing a false oath but failed to call Farady Atuti to testify although he was a key witness as the alleged oath had been taken before him.

The only concession he made was to agree that Mr Mumo had at one time been a chief in his location. In addition to that, he claimed that Mr Mumo’s acquittal by the courts did not mean that he or any other officer had in any way acted maliciously while conducting their duties.

It was the defendant’s view that the plaintiff had not established his claim to the required standards of proof set by law.

The main points relied upon by the defence were that in order to succeed, the plaintiff had to show that the defendant instituted the prosecution, that the prosecution was actuated by malice and that the said proceedings had ended in the acquittal of the plaintiff.

It was therefore their contention that Mr Mumo had not proven malice in the arrest. They further claimed that the mere fact that the plaintiff had been prosecuted and acquitted was not evidence of malice.

They therefore did not think that the plaintiff deserved the reliefs sought before the court and urged the court to find the same.

The High Court in weighing the evidence before it considered the 1995 case of Wasike versus AG where the plaintiff had sought damages for torture and false detention for a period of 42 days during which he claimed to have been severely physically tortured.

After due consideration of the evidence the court in that instance had awarded Sh7,000,000 as special damages and Sh700,000 as general damages.

In the 2000 case of James Kanga versus AG, the Court of Appeal had ruled on the issue of malicious prosecution stating that to prosecute a person was not prima facie wrong, but to do so dishonestly or unreasonably amounted to malicious prosecution.

The burden of proving that the prosecutor did not act honestly or reasonably was on the person prosecuted which burden the court ruled had not been discharged by the appellant.

On assessment, the High Court found the issue for determination to be whether the plaintiff had established liability as against the defendant on the claim of malicious arrest and prosecution.

Technical ground

The defence moved to attack the plaintiff’s claim both on technical grounds and on merit; the technical ground being that the claim was time-barred and that it had been brought before the court in an unprocedural manner, and the ground of lack of merit being that Mr Mumo had not proved his claims and as such was not deserving of any award.

The court observed that it was entitled to revisit the particulars of the claims and then determine whether the content satisfied the ingredient for particulars of malice as required by the rules of procedure.

After a full trial, the High Court found that Mr Mumo’s claim had been brought within the allotted time and that the format in which it had been brought was correct.

The court therefore ruled in his favour on the basis of unlawful arrest, false imprisonment and malicious prosecution. Under the circumstances, the High Court proceeded to award Sh300,000 damages.

The writer is an advocate of the high court of Kenya


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