INTENTIONAL TORTS AGAINST THE PERSON

A. ASSULT
- An assault is said to be any act which any person intentionally or recklessly causes another to
apprehend or fear injury through immediate and unlawful violence.
- It must be shown that the defendants conduct created reasonable apprehension or injury.

Stephen v Myres (1830) 4C Ee P 349; 172 ER 735

- The plaintiff and the dependent were in a meeting. They sat at different places with about six
people in between them.
- The defendant became rather rowdy and it was decided that he should be evicted from or
leave the meeting.
- However, he became rather angry and declared that he has going to evict the plaintiff who
was chairman of the meeting.
- The defendant shot up from his seat and proceeded in a menacing manner to the plaintiff with
his fists clenched.
- However, he was stopped by another person who was on the third seat from the plaintiff.
- He was not so near for any blow to have reached the plaintiff even though he clearly had the
intention to strike to plaintiff.
- The defendant argued that there was not assault because he had been stopped to strike the
plaintiff.
- Tindal, C.J. declared that “It is not every threat, when there is no actual personal violence
that constitutes an assault.” He held that a threat must be accompanied by the intent and “the
means to carry the threat into effect.” Tindal C.J. instructed the jury to decide whether the
defendant was advancing with the intent to strike the plaintiff and, in fact, would have done
so had be not been stopped. The jury awarded damages for the assault.
- The jury awarded damages because though the defendant had been stopped, it was clear that
he was advancing towards the plaintiff with the intention to strike him and that had he not
been stopped, then, he would have struck the plaintiff.

Generally an assault would be committed when the defendants conduct can be said to be overt or
observable; and there should be a threat of physical contacts.
However, it is possible also that an assault may be committed by words depending on the
surrounding circumstance of the plaintiff and defendant
This was determined in two English cases R v Ireland [1997] 3 WLR 534 and R v Burstow
[1998] AC 147
R v Ireland [1997] 3 WLR 534 and R v Burstow [1998] AC 147
One of the issues was whether the maker of silent telephone calls could be found committed an
assault against the victim. The defendant had argued that an assault can only arise out of a
gesture and not words.
In the R v Ireland case, a stalker was breathing heavily down the telephone, but he did not utter a
word. The House of Lords stated that silence would amount to a threat if the defendant intended
to cause fear, and it is assault if the claimant fears it would be carried out in the very near future,
i.e a couple of minutes. According to Lord Steyn, 'the proposition... that words cannot suffice is
unrealistic and indefensible.. (the phone caller) intends his silence to cause fear and intimidation.'
Lord Steyn was of the opinion that, it was possible to commit assault by words because, “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 dark alley (corridor) saying; come
with me or I’ll stab you.”
The general rule that arose from the case is that, an assault can be caused by words depending on
the facts of the case.
As it was stated by Lord Hope, the determination of that issue depends on the surrounding
circumstances e.g. if the words are accompanied by other words and gestures; which indicates
that the defendant is likely to inflict physical injuries and then, there will be an assault.
Where the words are accompanied by actions, there is no question that an assault would be
committed as long as they put the plaintiff is apprehension of injury

Read v Coke (1853) 138 ER 1437

The plaintiff was told to leave the premises where he conducted his business.
He refused and the defendant collected together some of his workmen who stood near the
plaintiff with sleeves and aprons and told him they would break his neck if he didn’t leave
Plaintiff left and it was held that assault was committed because he left because there was a
threat to assault the plaintiff in addition to the fact that the defendant had the defendant had the
capacity to do so.

Holcombe v. Whitaker, 318 So.2d 289 (Ala. 1975)

‘The plaintiff claimed that the defendant committed an assault when in June of 1971, she went to
see him and tried to get him to get an annulment, he said "If you take me to court, I will kill
you."; and again in October, 1971, after she had filed the instant suit on September 29, 1971,
when he went to her apartment and beat on the door, tried to pry it open, and said again, "If you
take me to court, I will kill you." (The complaint was amended to include this act.) The
defendant claims this in no way can constitute an assault, because it was merely a conditional
threat of violence and because no overt act was involved. In order to safeguard freedom from
apprehension of harm or offensive conduct, the law provides an individual with a remedy at law.
See Prosser, Law of Torts, page 37 (4th Ed. 1971).

While words standing alone cannot constitute an assault, they may give meaning to an act and
both, taken together, may constitute an assault. Prosser, supra (2nd Ed. 1955). In addition, words
may negative an act in a manner that apprehension in such a case would be unreasonable. "On
the other hand, a show of force accompanied by an unlawful or unjustifiable demand,
compliance with which will avert the threatened battery, is an assault." 1 Harper & James, The
Law of Torts, page 223 (1956). "... the defendant is not free to compel the plaintiff to buy his
safety by compliance with a condition which there is no legal right to impose." Prosser, supra,
page 40 (4th Ed. 1971). It is obvious that the defendant in the instant case had no right to
impose the condition he did on the plaintiff; and we cannot say that this condition
explained away his threat to harm her. -- Holcombe v. Whitaker, 318 So.2d 289, 294 (Ala.
1975).’

Where the threat by defendant is conditional in the sense that he would inflict injuries if plaintiff
did something, then unless the thing occurs, then, there would be no assault as it was held in the
case of Tuberville v Savage [1669] EWHC KB J25
Tuberville V. Savage [1669] EWHC KB J25
The defendant put his hand on his sword and told the plaintiff ‘if it were not assize time, I would
not take that language from you.’ It was held there was no assault because there was no
apprehension of immediate injury.
What about the intentions of the defendant?

The defendant's conduct should lead the plaintiff to believe an application of force will be used
against him, even if it will not. The belief should be genuine.

In the case of Blake v Barnard, the defendant pulled a gun on the plaintiff. The defendant knew
it was not loaded but the plaintiff did not. The plaintiff had reasonable belief of getting shot to
death, therefore it was held that the defendant’s conduct amounted to assault.

N/B the cases above generally point out that to constitute assault, there must be:

(i) a threat, accompanied by

(ii) intent and
(iii) sufficient means or ability to effect the threat that
(iv) causes the plaintiff to perceive the harm is imminent.

B. Battery
Any form touching to the plaintiff without the plaintiff consent is battery.
However, whether it raises legal liability would depend on the circumstances.
Examples is punching, slapping, pinching, hitting someone with a stick or object that is thrown,
pulling someone clothes, powing water or any liquid in them etc. It is a battery if there is an
element of hostility from the defendant as held in the case of Wilson v Pringle.

Wilson v. Pringle (1982) Q3 237

On the 4th /12/1980, the plaintiff and defendant were both school boys aged 13.
On that day at school, the plaintiff had a fall which caused injury to the left hip.
By the time of the suit, the plaintiff still suffered from this injury.
The plaintiff claimed that the defendant had jumped on him during house play.
The defendant argued that there was no intention to cause injury because they were at play and
therefore there was no hostility on his part.
It was held that no battery had been committed because the intention to inflict injuries was not
present.
The court stated that what amounts to hostility is a question of fact that depends on the
surrounding circumstances.

Distinction between battery and assault.

Assault and battery are 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 drop lands on the person then it results to a
battery. E.g in Pursell v Horn (1838) 112/Pursell v Horn (1838) 112 ER 966. The defendant
threw water on the plaintiff. The court held that it was battery.
Pulling a chair on which a person is about to sit is an assault until he hits the floor when the floor
when lie hits the ground /floor.
Both an assault and a battery follow under trespass to the person
Under common law, any form of trespass was said to be actionable per se; this means that there
will be a cause of action with or without prove of injury.
This means that mere act of the defendant in causing the assault or the battery is sufficient and
the plaintiff does not need to prove that he/she suffered any injury.
Makube V. Nyamuro (1933) KLR 1
In this case, the appellant a school boy (13 years) claimed injuries against a teacher allegedly
caused by the teacher by corporal punishment.
The teacher had hit the plaintiff in the eye and he suggested that the injury was accidental.
It was held that the injury was intentional and the defendant was liable.
However, Justice Hancock in his obiter dictum considered the difference between an assault and
battery in that while an assault is an act indicating immediate intention to commit battery, battery
is the direct application of force to the person without lawful justification.

C. False imprisonment
It is infliction of bodily restraint which is not authorised by law.
It has two elements:
 i) The plaintiff must be detained
ii) The detention must be unlawful
Detention / imprisonment were be defined in the case of Meering v Graham White Aviation.
Meering v Graham White Aviation
- It means restraint of a person’s liberty whether it is in the open field, a cage, in a person own
house or in jail.
- Imprisonment will be committed even when the plaintiff is not aware that he/she is being
detained.
- In this case, the Defendant suspected the plaintiff to have stolen a container of paint.
- Two of the defendant’s police asked the plaintiff to go to the defendant office where he was
invited to a waiting room.
- The police however remained nearby.
- In a claim of false imprisonment, the defendant argued that the plaintiff was always free to
go wherever he wanted to but the plaintiff did not desire to do so.
- It was held that there was false imprisonment because as soon as the plaintiff came under the
influence of the police, then, he was no longer a free man.
- Lord Atkin held that a person can be in prison even if he is asleep or in state of drunkenness
or unconscious on even when he is a lunatic.
- The rule that the plaintiff need not be aware that he/she is being detained, for a detention to
be held to be false is said to be important because it protects personal liberty which is a right
that must be strictly enforced for the benefit of the entire society.
- It does not matter therefore that the plaintiff is not aware that he/she is being detained.
- It has also been held that for a detention to fall within the category of false imprisonment the
restraint must be complete.
- The plaintiff must not be in a position to escape from the detention.

Bird v Jones
The defendant wrongly enclosed part of a public footpath on a bridge and put seats in it for use
of spectators of a regatta (boat race).
He charged an admission in the regatta.
The plaintiff visited in passing through without charge.
On the Defendants instructions, 2 policeman prevented the plaintiff to obstruct him instructed
him to go the way he had come.
He refused to do so and remained in the closure over 30 minutes and he tried to force his way
through.
He was arrested. On the issue as to what there was false imprisonment at the time he was
obstructed by the police, it was held that there was no false imprisonment; because what the
defendant did was to obstruct his movement forward through the enclosure but the plaintiff was
free to go back to where he came from or to stay where he was.

However, if there is a means of escape and the plaintiff is not aware of its existence, then a
claim in false imprisonment will succeed.
If the plaintiff is aware but does not escape then there shall not be false imprisonment.
However, the escape root must be the one that is reasonable and does not jeopardize the
plaintiff’s safety.

Wright v Wilson: 1699 1699] EngR 2895, (1699) 1 Ld Raym 739, (1699) 91 ER 1394

Ratio: An action for false imprisonment will not lie against a man for fastening one of two doors
in a room in which X. is, though X. cannot go through the other without trespassing.
X has a chamber adjoining to the chamber of Y. and has a door that opens into it, by which there
is a passage to go out; and X. has another door, which W. stops, so that X. cannot go out by that.
This is no imprisonment of X. by W. because X. may go out by the door in the chamber of Y.
though he be a trespasser by doing it. But X. may have s special action upon his case against W.
Ruled by Holt Chief Justice, in evidence at a trial at the Summer Assizes at Lincoln 1699, in an
action of false imprisonment. And the plaintiff was nonsuit.
Food for thought:
Is putting someone in a coma false imprisonment? What about stranding someone in a desolate
place?

D. Malicious prosecution
This will arise where the Defendant causes the arrest of the plaintiff and his prosecution when
there are no reasonable cause. In fact, the defendants act must be actuated by malice.
Gichanga v B.A.T (k) Ltd (1989) LR 352
It was held that to succeed in a claim of malicious prosecution the plaintiff must show that:
i) The prosecution was caused by the defendant
ii) The prosecution terminated in the plaintiffs favour
iii) The prosecution was instituted without any reasonable cause
iv) The prosecution was actuated by malice.
In the instant case, the plaintiff was an employee of the Defendant.
- As a result of a complaint related to loss of money made by as employee, he was arrested and
charged with the offence of stealing by servant contrary to section 281 of the Penal Code.
- However, this case was later withdrawn under Section 87 of the criminal procedure code
- By this time however, the plaintiff’s employment had been terminated. He sued for both false
imprisonment and malicious prosecution. It was established that it was the plaintiff’s the
colleague who had reported the loss of money to the police and it was therefore held that it
was not the defendant who had invited the police. Therefore, the first element was not
proved. The making of a complaint to police is not evidence that the prosecution has been
set in motion by the defendant.
Gitau v AG (1990) K.L.R. 13
The plaintiff sued for malicious prosecution among other claims. He had been arrested at 1.00
Am outside a night club by the police officers who having observed him fumbling with the door
of his car thought that he was attempting to drive while he was drunk.
He was taken to the police station and doctor conducted some tests and concluded that the
plaintiff was not drunk.
He was however locked up in the cell for two days.
He was told he would be charged by the offence of being drunk and disorderly.

He was admitted into bail and since he could not raise the money at the time, he requested for
permission to contact his father, the police refused as a result of which he had to spend more
time in the cell. Subsequently, his wife paid the bail and he was released. At the subsequent
hearing of the case, the court dismissed the charge without calling for evidence from the accused.
He sued for malicious prosecution. The plaintiff claim for malicious prosecution was dismissed
because it had not been proven on the basis of the elements in the tort of malicious prosecution.
The court restated the rule of malicious prosecution. “To succeed on a claim for malicious
prosecution 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 arrest. It means being actively instrumental in causing a person with some judicial
authority to take action that involves the plaintiff in 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 responsibility for setting the law in motion rests
entirely on the Officer-in-Charge of the police station. If the said officer believed what the
witnesses told him then he was justified in acting as he did, and the court is not satisfied
that the plaintiff has established that he did not believe them or alternatively, that he
proceeded recklessly and indifferently as to whether there were genuine grounds for
prosecuting the plaintiff or not.”.

The court reasoned that in the instant case, even though it has the officer in charge who set law in
motion, there was no prove that the officer acted without reasonable cause. The facts that were
guarantor the office rin charge were such that any reasonable police officer would have taken the
measures he had taken i.e. preferring the charges against the plaintiff.
1. James Kariga Kiiru v Joseph Mwamburi civil Appeal 171 of 2000
2. Nzoia Sugar Company limited v Tungututi (2002) KLR 1.
3. Samuel Ndirangu V. Patrick Wachira Nderitu H.C. C. A No. 88 2001

James Kariga Kiiru V. Joseph Mwamburi civil appeal case.

- The appellant, James Karuga, was arrested on 6 th October (1987) by the police men after being
suspected within reasonable and substantial grounds that they were involved in an illegal
business of poaching trophies.
He was detained in Malindi Garsen and Hola police station.
He sued on the grounds of malicious prosecution, false imprisonment and loss of business.
It was held that false imprisonment could not hold in this case since he was arrested on
reasonable founds of being suspected and detained according to criminal procedures as police
were understanding investigation.
The court also dropped charges on malicious prosecution on the grounds that the police officers
that there was a reasonable and a probable cause of prosecution that appellant was unable to
prove otherwise.
Hence, the appeal failed and was dismissed.

What amounts to reasonable and probable cause for the purposes of malicious prosecution was
explained by Rudd, J in Kagame & Others vs. AG & Another [1969] EA 643. Citing Hicks
vs. Faulkner [1878] 8 QBD 167 at 171, Herniman vs. Smith [1938] AC 305 and Glinski vs.
McIver [1962] AC 726 the learned judge stated:

“Reasonable and probable cause is an honest belief in the guilt of the accused based upon a
full conviction founded upon reasonable grounds of the existence of a state of
circumstances, which assuming them to be true, would reasonably lead an ordinary
prudent and cautious man placed in the position of the accuser to the conclusion that the
person charged was probably guilty of the crime imputed...Excluding cases where the basis
for the prosecution is alleged to be wholly fabricated by the prosecutor, in which the sole
issue is whether the case for the prosecution was fabricated or not, the question as to
whether there was reasonable and probable cause for the prosecution is primarily to be
judged on the basis of objective test. That is to say, to constitute reasonable and probable
cause the totality of the material within the knowledge of the prosecutor at the time he
instituted the prosecution, whether that material consisted of facts discovered by the
prosecutor or information which has come to him or both, must be such as to be capable of
satisfying an ordinary reasonable prudent and cautious man to the extent of believing that
the accused is probably guilty.

Must Read Case: Decision of Justice Odunga in THOMAS MUTSOTSO BISEMBE V

COMMISSIONER OF POLICE & ANOTHER [2013] eKLR.

Defences to intentional torts against the person

i) Reasonable conditions
There would be no tort where the defendant prevents the plaintiff from leaving the premises for
failure to fulfil a reasonable condition subject to which the plaintiff had entered the promises.
Robinson v Balmain Ferry Co. Ltd
The Plaintiff paid a penny to enter into the Defendant’s premises with a view to board in a ferry
to cross a river.
There was no ferry and the Plaintiff was required to wait for 20 min. He became impatient and
changed his mind and wanted to exist the premises, however, he was required to pay another
penny to exit the premises.
He refused to pay, and the Defendant refused to let him pass through. In a claim for false
imprisonment, it was heard that, where the Plaintiff has gained access to Defendant’s premises,
subject to a reasonable condition, then there would be no trespass to the person if the Plaintiff
was required to comply with a reasonable condition for leaving the premises in question.

ii) Lawful arrests

Sec. 21 of the criminal procedure code provides that in making an arrest, the police officer as
other person making the arrest shall actually touch or confine the body of the person to be
arrested unless there is a submission to custody by words or action.
Where a person forcibly resist / avoids he arrest, the police officer making the arrest in allowed
to use all means necessary and when force is used it shall not be greater than is necessary or
reasonable under the circumstance.

In M’Ibui v Dyer [1967] EA 315 the plaintiff, a miraa trader was transporting miraa in sacks at
night from Meru to Nairobi through a secondary road which passed through sheep farms. The
vehicle developed engine problems and stopped for repairs. Stock theft was prevalent at the time
and the defendant, a farm manager was awakened by his workers and informed that sheep were
being stolen from the boma. He drove to the sheep boma, found sheep scattered and then drove
towards the road in an attempt to track down the thieves. He saw the plaintiff’s vehicle stopped
but as he approached it, he saw two people scramble into it and the vehicle move off. Defendant
fired two shots in the air and the vehicle stopped. Three men one of them the plaintiff got out and
ran away. The defendant then fired a third shot aiming upward but in the direction of the plaintiff
whereupon two of the men stopped. A search party discovered the plaintiff nearby with a gun
shot wound in the shoulder and another in the leg. On the question of liability of the defendant, a
private person, the High Court held that although defendant had reasonable grounds for
suspecting a felony had been committed and was thus not negligent in firing the first two shots
he was nevertheless negligent in firing the third shot in the direction of the plaintiff as the
amount of force used in the circumstances was neither reasonable nor necessary.

Sec 26 of criminal procedure code

Provides that a police officer can or any other authorised person my stop, search or detain a
person if he’s suspected of being in possession of stolen goods.
Section 29
Empowers a police officer to arrest with or without order from magistrate/warrant any person
who is suspected to have committed a cognizable offence possession of stolen goods and who
may obstruct a police to perform their duty or commit a breach of peace.

Section 34
A private person may arrest a person who in his view commits a cognizable offence, or who he
reasonably suspect to have committed a felony. The owner may arrest any person without a
warrant who inflicts injury to his property.

iii) Consent
This is generally a defence to battery where the Plaintiff knowingly accepts that there may be
contact from the Defendant.
Njareketa v Director of Medical Services (1950) vol 17 EACA 60
The appellant was admitted in the hospital with a tumor on one of his legs. After an x-ray it was
confirmed that the tumor was spreading and therefore became necessary that an operation be
done to amputate the leg. The doctor explained the situation to the appellant, and he got the
consent to the procedure and a date was fixed for the operation.

One day before the operation, it was discovered that the appellant condition was getting worse
and the doctor decided that an immediate operation was necessary, however, the appellant told
the hospital officials that his father had advised him against the operation.
By this time, the appellant was conscious but was seriously ill. The doctor, nevertheless directed
that the operation proceed on the ground that the appellant was not in a fit state of mind. The
appellant sued for trespass for battery.
It was held that although there was indeed a trespass, it did not entitle the appellant the award of
damages that had been granted to him in the high court. With respect to consent, the court held
that to the extent that the appellant withdrew his consent to the operation then, it was possible
that a battery may have been committed except that under these circumstances it was clear that it
was necessary to intervene to save the appellant’s life.
The court reasoned that, if the operation was not performed the plaintiff would have not lived
beyond a certain time and also that it was the Defendant’s courage and professionalism that
saved the appellant and while the appellant was inconvenienced by the loss of leg, he was not
totally disabled.
The court therefore, reduced the damages that were awarded to the appellant to 1 cent and set
aside the orders that required that the doctors to pay the cost of the case.

Most of the physical contacts of ordinary life are not battery because they are impliedly
consented to by those who move to them e.g. there can be no cause of action from jostling in a
crowded place. A person cannot complain, if his hand is touched in friendship and many other
forms of touching that are deemed inevitable in ordinary life will not raise a cause of action.
Medical treatment even of a minor nature generally should not proceed unless there is consent.
This consent may be expressed or implied, however, there is an exemption to the general rule
that allows treatment to proceed without consent if it is necessary to save the patient’s life. If the
patient is in a state of mind where he/she cannot express their consent or where the patient is
unconscious, then, the doctor will be allowed legally to undertake treatment that is necessary to
save the patient’s life.

iv) Necessity
Refer to the case above.
v) Self-defence
Read the following cases:
Cockcroft v Smith (1705) 11 Mod 43
Lane v Holloway [1967] 3 All ER 129, [1968] 1 QB 379, Lane v Holloway [1967] 3 WLR 1003