Malicious prosecution is crime, nothing else

By Apollo Mboya

Kenya: Malicious prosecution is treated as a common law civil wrong, which unfairly causes someone to suffer loss or harm. The elements of malicious prosecution include intentionally (and maliciously) instituting and pursuing (or causing to be instituted or pursued) a legal action (civil or criminal) that is brought without probable cause and dismissed in favour of the victim.

The term “malicious prosecution” denotes the wrongful initiation of criminal proceedings in the absence of a reasonable and probable cause.

It is widely accepted that reasonable and probable cause means an honest belief founded on reasonable ground(s) that the institution of proceedings is justified.

In legal parlance, reasonable and probable cause is “an honest belief in the guilt of the accused based upon a full conviction, founded on reasonable grounds, of the existence of a state of circumstances, which assuming them to be true, would reasonably lead to any ordinarily prudent and cautious person, placed in the position of the accuser, to the conclusion that the person charged was probably guilty of the crime imputed.” The test contains a subjective as well as an objective element. Therefore, both actual belief on the part of the prosecutor and the belief must be reasonable in the circumstances.

The necessary deduction, which the courts have for centuries made from that definition, is that there has to be a finding as to the subjective state of mind of the prosecutor as well as an objective consideration of the adequacy of the evidence available. The requirement of reasonable and probable cause in proving malicious prosecution tends sometimes to be confused with the requirement of reasonable ground to suspect that an offence has been committed.

On April 14, 2014, the High Court quashed criminal proceedings lodged by the Director of Public Prosecutions against Musyoki Kimanthi, advocate, in relation to alleged fraud over a disputed property terming the criminal charge an abuse of the court process because the purpose of instituting the criminal complaint was to assist a plaintiff in civil proceedings make out its case on the alleged forgery of title to a suit property and the police were drawn in to assist in this regard.

The law reports are replete with similar instances of malicious prosecution, which not only embarrass but damage reputation and stigmatise innocent persons discharging their professional duties.

The interests protected against malicious prosecution include that of personality, such as the integrity of the person, honour, reputation, free speech, business relations among others and even property interest. Damage to a person’s property is relevant where one is forced to expend his/her money in necessary charges, to acquit themselves of the crime of which they are accused of.

If a person is put to expenses is without doubt an injury to property; and if that injury is done maliciously, it is reasonable that one shall have an action to repair reputation. But more importantly, malicious prosecution is an obvious gross violation of the fundamental rights and freedom of the victims especially where one is arrested or detained.

Ordinarily one who intentionally causes the confinement of another by inducing a third person to do so is subject to the same liability as though he/she had confined or imprisoned the other.

This principle is applied where a member of the public induces a police officer to arrest another without a warrant by direction or request or on a charge of crime which one knows to be without foundation.

While the public interest in protecting those who assist in law enforcement justifies the immunity to criminal prosecutors and judicial officers, it is only a qualified immunity from liability for malicious prosecution with protection only if either of the conditions of absence of probable cause and an improper purpose are wanting.

Article 157 of the Constitution grants the DPP to exercise State powers of prosecution and may institute and undertake criminal proceedings against any person before any court (other than a court martial) in respect of any offence alleged to have been committed.

Although the DPP has the discretion to determine which complaint should lead to a criminal prosecution, the High Court may intervene where that discretion has been abused or where the effect of the proceedings results in the abuse of the court process.

While the risk of a suit of malicious prosecution hazards a prosecutor, this is the burden they must bear in exchange for the privilege and discretion they enjoy which if not exercised professionally, can destroy reputations and livelihoods of those they prosecute maliciously.

Since crime is against the whole society, malicious prosecution is equally a heinous crime against the public whose repercussions can be devastating to the victims.

The legal profession must reinvigorate criminal law by identifying new emerging ingredients of crimes because of potential victimisation of the innocent by way of abuse of the discretional powers granted to the police and prosecutors to commence criminal proceedings.

The writer is Secretary/CEO of the Law Society of Kenya

mboya@lsk.or.ke