Definition
Oxford Law Dictionary defines malicious prosecution to mean
“……The malicious institution of legal proceedings against a person. Malicious prosecution is only actionable in tort if the proceedings were initiated both maliciously and without reasonable and probable cause and they were unsuccessful. No one who has been convicted of a criminal charge can sue for malicious prosecution….”
The definition and interpretation are better manifested in case law as we shall later see. To succeed in a claim for malicious prosecution, the plaintiff must prove/establish the set principles.
Ideally, the criminal justice system, is to ensure that an accused person is accorded a fair hearing. This has to be maintained throughout the judicial process from the time of arrest to either their acquittal or conviction as the case may be.
However, not all cases are genuinely brought to court. In some instances, some cases are actuated by false information supplied by a complainant, corruption, wrongful, or by error of police or the prosecution.
Where the defense brings to light such factors early enough before the trial an accused person may be discharged. In some instances, the trial proceeds to full determination and the accused is equally acquitted.
Whereas this may come as a relief to the accused person, the law seeks to ensure that no wrong shall suffer without a remedy. The trial process consumed time in court, the accused person could have his reputation tarnished, financials damaged and his life ruined. Consequently, he ought to be compensated.
What recourse does one have in law?
Justice Mativo in STEPHEN GACHAU GITHAIGA & ANOTHER V ATTORNEY GENERAL [2015] EKLR states “An action for malicious prosecution is the remedy for baseless and malicious litigation. It is not limited to criminal prosecutions but may be brought in response to any baseless and malicious litigation or prosecution, whether criminal or civil. The criminal defendant or civil respondent in a baseless and malicious case may later file this claim in civil court against the parties who took an active role in initiating or encouraging the original case. The defendant in the initial case becomes the plaintiff in the malicious prosecution suit, and the plaintiff or prosecutor in the original case becomes the defendant.”
Justice Mativo in the above case quotes as follows,
“I find useful guidance in the wise words of Duffus V.P. in the case of KASANA PRODUCE STORE VS KATO at page 191, paragraph G-I where he laid down the ingredients for malicious prosecution as follows: –
- The plaintiff was prosecuted by the defendant in that the law was set in motion against him by the defendant on a criminal charge. The test is not whether the criminal proceedings have reached a stage at which they may be described as a prosecution but whether they have reached a stage at which damage to the plaintiff result.
- That the prosecution was determined in the plaintiffs favour.
iii. That it was without reasonable or probable cause-On the evidence the defendant did not believe in the justice of his own case.
- It was malicious-The defendant had improper and indirect motives in pursuing the false charge against the plaintiff.”
CONCLUSION
The onus is therefore on the defense to establish that the four ingredients discussed above have been fulfilled for one’s case to be termed as such. It is noteworthy that whenever an accused person is acquitted in a criminal case, this alone is not enough ground to institute a suit for malicious prosecution.
