Hamiei v. Akilimali Civ. App. 41-M-70; 3/3/71; El –Kindy Ag. J.

 

Hamiei v. Akilimali Civ. App. 41-M-70; 3/3/71; El –Kindy Ag. J.

The appellant found the respondent’s servant cutting palm fruits from a tree which he thought was in his shamba. He called the respondent and in the presence of other persons alleged that the respondent was a thief. A complaint of theft by the appellant to the police was not taken up by the police because the boundary between appellant’ shamba and that of the respondent which was adjacent was not clear. The appellant instituted a private criminal prosecution for theft against the respondent. This failed because, according to the trial court, the boundary was so obscure, that it could very well be that the tree from which the fruits were cut belonged to the respondent. Whereupon the respondent brought a result of the malicious prosecution by the appellant, his reputation and standing had been put into public ridicule and contempt. The District Court allowed the claim and ordered Shs. 1,000/- damages. On appeal:

            Held: (1) “If a person directly communicates to the mind of another matters which are untrue and are likely in the natural course of things, substantially to disparage the reputation of a third person is , on the face of it, quality of a legal wrong, for which the remedy is a n action for defamation. However, if such a person did in fact have such bad reputation he cannot complain if others talk or communicate it to others as these people are entitled to do so as long as what they communicate reflects the true reputation.” (2) The respondent filed to prove that the allegation of theft against him was false. The criminal tried court did not make any finding whether the tree from

Which the fruits were cut was on the shamba of the appellant or the respondent. “The criminal action floundered on the rock of this obscure boundary and the civil action equally does so.” (3) “The fact that the respondent was acquitted did not mean that the allegation was false. It simply meant that the evidence, as indeed it turned out, was inadequate to establish the offence of stealing. Evidence which is insufficient for criminal cases could be adequate for civil cases, but it need not be necessarily be adequate for civil cases. Such is the case in hand. For these reasons, therefore, I find that his suit against the appellant cannot be allowed to stand.” (4) Costs are not to be awarded because (a) the appellant is largely to blame for these proceeding; (b) it might prejudice any attempt at reconciliation; (c) it might more strain the already strained relationships between the parties who are related. (5) Appeal allowed.