(Being an appeal against the decision of Hon. A. Nyoike Senior Principal Magistrate in Nairobi MCCC E054 of 2021 dated 29 th May 2025)
1. The appellant herein had been charged with the offence of murder contrary to section 203 as read with 204 of the Penal Code in Nairobi High Court Criminal Case No. 17 of 2015. The matter went to full hearing and the court found the appellant not guilty of and acquitted him under section 306 (1) of the Criminal Procedure Code.
2. Subsequently the appellant filed a civil suit being Civil Case No. E054 of 2021; Carl Gary Singleton v The Attorney General, claiming as against the respondent for general damages for false imprisonment and malicious prosecution. The plaintiff in his testimony testified that he had been cohabiting with the deceased Peris Ashley Akinyi Angumbi. That he was informed that she was diabetic. He stated that they once had a disagreement and the deceased made a report to the police alleging that he had destroyed her diabetic medicine. He stated that the police went to his house but he refused to open as he did not know that it was the police. He stated that the deceased died a few days later for failure to take her medication. He was subsequently arrested and charged with murdering the deceased. He stated that the police were malicious in charging him as they did not consider the cause of death. He denied flushing the drugs in the toilet or destroying them as alleged or at all. He stated that he believed that he was accused because of his nationality. He was arraigned in Milimani Law Court and charged with the offence of murder. He was granted a bond of Kshs. 3,000,000/- with two Kenya sureties of like amount which he was unable to get. The court also retained his passport. He stated that remained in remand for a period of two years and seven months until his acquittal on 8 th June 2017. He stated that the matter was heard and determined in his favor.
3. The defendant in its defence denied that the plaintiff was unlawfully arrested and maliciously prosecuted as alleged in the plaint and put the plaintiff to strict proof. The defendant averred that the prosecution that ensued was based on probable and reasonable suspicion that the plaintiff had committed the offence of murder against the deceased Peris Ashley Agumbi which action was punishable under the law and that the police acted pursuant to powers granted to them under the Constitution and the Police Act. It was the defendant’s position that a mere acquittal of the plaintiff the criminal case does not automatically mean that the prosecution was malicious. The defendant denied that the plaintiff had suffered any loss and put him to strict proof thereof.
4. The defendant called one witness, DW1 No. 235280, Chief Inspector Maurice Chemesis of DCI Hedquarters who indicated that he was the investigations officer in HCCR Number 17 of 2015 in which the plaintiff was charged with the offence of murder. He stated that the plaintiff was accused of flushing the deceased’s medication down the toilet and thereby caused her to succumb to diabetes.
5. On cross-examination he stated that the deceased and the plaintiff had been living in the same apartment although the deceased was a university student. He further acknowledged that the plaintiff had been acquitted of the charge and that the post mortem examination revealed that the cause of death was acute complication due to uncontrolled diabetes. He further acknowledged that the deceased had the opportunity to buy medicine or access treatment at any of the hospitals that she visited before her death. He concluded his testimony by stating that there was no malice in the prosecution of the plaintiff.
6. The learned Trial Magistrate in dismissing the plaintiff’s claim held that claim held that, “the prosecution of the plaintiff was for justifiable reason and as for confinement, I am satisfied that the plaintiff was taken to court on the same day hence no violation of his rights on that aspect. Subsequent confinement was due to inability to satisfy the bond terms given.”
7. Dissatisfied with the said judgment the appellant appealed the said decision and filed his memorandum of appeal dated 5 th June 2025 raising the following 8 grounds;
i. That the Learned Trial magistrate misdirected herself and erred in both law and fact that the appellant failed to prove malice in his claim for malicious prosecution.
ii. That the learned Trial Magistrate misdirected herself and erred in both law and fact that the prosecution was instituted by the defendant.
iii. That the learned trial magistrate misdirected herself and erred both in law and fact that the prosecution terminated in the plaintiff’s favour.
iv. That the learned trial magistrate misdirected herself and erred both in law and fact that the prosecution was instituted without reasonable and probable cause.
v. That the learned trial magistrate misdirected herself and erred both in law and fact that the prosecution was infact actuated by malice on the respondent’s part.
vi. That the learned trial magistrate misdirected herself and erred both in law and fact in her interpretation of the elements required to prove the tort of malicious prosecution.
vii. That the learned trial magistrate erred both in law and fact in failing to consider the appellant’s submissions on record and thus arrived at an erroneous conclusion.
viii. That the learned trial magistrate erred both in law and fact in failing to uphold precedent and the doctrine of stare decisis.
8. The appellant thus urged the Court to allow the appeal and set aside the order dismissing his case, that judgment be entered against the respondent as prayed in the plaint filed in the lower court.
9. Both parties filed written submissions. The appellant in his submissions argues that the analysis by the Learned trial Magistrate failed to take into account the following facts:
”that the deceased Ashley Peris Agumbi allegedly had an altercation with the plaintiff at the plaintiff’s house and reported the incident to the police on the 19 th November 2014 at 22.25 hours accusing the plaintiff of destroying her spectacles and her diabetes type 1 and hypertension medicines. That despite the deceased having had access to three different hospitals, Kihari Sub-District Hospital on 20 th November 2014 at 22.25 hours, Avenue Hospital on the 21 st November 2014 and finally Ladnan Hospital on 22 nd November 2014 where she finally passed away”
10. The appellant submitted that the above facts clearly indicate that the plaintiff did not have any contact with the deceased from 19 th November 2014 to 22 nd November 2014 and hence the absence of probable cause.
11. On malice, the appellant submitted that as per the trial court’s judgment, “the investigations officer elevated the extent of suspicion so high that he lost track of the evidence he was supposed to have availed in court.”
12. That the trial court also found the evidence adduced to be incredible and wanting. He submitted that the investigations officer having lost track of the evidence that he was supposed to avail in court is prima facie evidence of lack of reasonable and probable cause and this made the whole prosecution malicious. He relied on the case of Emmanuel Kuria Wa Gathoni v Attorney General [2007] eKLR where the court stated that , “where the police decide to deliberately decide not to take into account the version of the suspect and act on a story that eventually turns out to be improbable and on which no ordinary prudent and cautious man would have relied upon, that failure may constitute lack of reasonable and probable cause for the purpose of malicious prosecution.”
13. In buttressing his argument that the prosecution was without probable cause, the appellant’s counsel cited the sentiments of Lady Justice Hedwig Ong’undi in the murder case judgment where she stated as follows:
“There was no witness who has told this court exactly where the deceased was and what she was doing from the time she made the report to Kihari Police Station up to the time she landed in Aga Khan Hospital. Camilta would have unraveled this. The reason is that it is in the interest of justice for this court to know why a 4 th year university student did not find it necessary to access drugs for her special condition when she knew the implication of failing to do so. Had she wanted to, she would have accessed the drugs. I find that the failure to of the prosecution to call Camilta Nabwire as a witness draws adverse conclusion against the prosecution which knew that her evidence was not going to support its case.”
14. Counsel further submitted that the learned trial magistrate erred in failing to find that the investigating officer’s personal suspicion was insufficient evidence in both fact and law and failed the objective test that requires a prosecutor to conduct his investigations and to ensure that in order to constitute reasonable and probable cause, the prosecutor must examine the totality of the material within the knowledge of the prosecutor as at the time he instituted the prosecution. It was therefore submitted that the prosecution acted with malice by charging the appellant with the offence of murder without sufficient evidence to sustain a murder charge.
15. The respondent submitted that the trial magistrate did not err in both law and fact in finding that the appellant failed to prove his claim for malicious prosecution. It was submitted that the witness for the respondent testified that the agents of the respondent were not actuated by any ill-will or spite against the appellant in prosecuting him for the offence of murder and that they were just executing their statutory duties. That the police received a valid complaint from the deceased, issued a P3 form and recorded witness statements from the deceased which implicated the appellant to have assaulted her and eventually flushed her diabetes drugs down the toilet. It was submitted that for a plaintiff to prove malicious prosecution he must prove;
i. That the proceedings was instituted by the defendants or by someone for whose acts they are responsible
ii. That the prosecution was terminated in his favour
iii. That the prosecution was instituted without a reasonable and probable cause.
iv. That the prosecution was actuated by malice.
16. It was submitted that the appellant failed to prove that the prosecution was instituted without reasonable or probable cause and or that it was actuated by malice. The respondent further submitted that the appellant was not subjected to any false imprisonment as he was presented to court on 5/2/2015 after being arrested on the same day and that the remand period at Industrial Area Prison was as a result of a judicial order. The respondent therefore urged the court to reject the appeal and dismiss it with costs.
Analysis and Determination
17. I have carefully read and considered the pleadings, the evidence adduced as well as the submissions made. This being a first appeal, I am called upon to examine and evaluate the evidence and reach an independent conclusion bearing in mind that I did not hear or see the witnesses testify. It is settled law that for a plaintiff to prove malicious prosecution he must show that;
i. The prosecution was instituted by the defendant, or by someone for whose acts he is responsible;
ii. That the prosecution terminated in the plaintiff’s favour
iii. That the prosecution was instituted without reasonable and probable cause;
iv. That the prosecution was actuated by malice
18. In the case of Mbowa v East Mengo District Administration [1972] EA 352, Murunga v Attorney General [1979] KLR 138 the East Africa Court of Appeal held that, “the plaintiff, in order to succeed, has to prove that the four essentials or requirements of malicious prosecution, as set out above, have been fulfilled and that he has suffered damage. In other words, the four requirements must “unite” in order to create or establish a cause of action. If the plaintiff does not prove them he would fail in his action.”
19. It is not in dispute that the appellant was charged and subsequently acquitted. In acquitting the accused person, the High Court found that the element of suspicion was elevated so high making the investigations officer to lose track on what evidence he was supposed to avail in court. The appellant was never put on his defence as the prosecution did not establish a prima facie case against him.
20. The law is clear that being acquitted of the criminal charge does not necessarily connote malice on the part of the prosecutor. In the case of Nzoia Sugar Company Ltd v Fungututi [1988] KLR 399 , the Court of Appeal held that, “an acquittal per se on a criminal charge is not sufficient basis to ground a suit for malicious prosecution. Spite or ill-will must be proved against the prosecutor. The mental element of ill will or improper motive cannot be found in an artificial person like the appellant but there must be evidence of spite in one of its servants that can be attributed to the company”.
21. At paragraph 12 of the plaint, the appellant set out particulars of malice/absence of reasonable and probable cause as follows:
a) Inspector David K. Luchacha maliciously recorded in the occurrence book OB 15 of 19/11/2014 (Kihara Police Post) that the deceased alleged that the plaintiff assaulted her and destroyed her diabetes medication.
b) Inspector David K. Luchacha failed to treat the dying declaration in the OB with caution and suspicion.
c) The deceased had the opportunity to freely and independently access 4 hospitals; Kihara Sub-District Hospital, Aga Khan Hospital and Ladnan Hospital before she died.
22. The appellant further pleaded that the prosecution failed to consider the fact that the plaintiff had no contact with the deceased from the night of 19 th November 2014 to the 22 nd November 2014 when the deceased died. That the cause of death was due to diabetic ketoacidosis caused by the deceased’s non-compliance in taking her medication and had nothing to do with the plaintiff.
23. Taking all the above into consideration, this court hereby finds and holds that there was no reasonable and probable cause for charging the appellant with the offence of murder. The cause of death was clear and was not attributable to the appellant. As observed by the High Court in the murder trial, the deceased had access to medical care in at least three facilities and it is not clear why she never secured medication for her condition. The appellant could not be blamed for this and the decision to charge him must have been actuated by malice. I therefore find and hold that the learned trial magistrate erred in law in holding that the appellant had not established malice and/or lack of reasonable and probable cause. His prosecution was therefore malicious.
24. On the claim for false imprisonment, I have taken note of the fact that the appellant was presented to court the same day that he was arrested. The police did not detain him unlawfully. His remand at Industrial Area Prison during trial was pursuant to a lawful court order after he was unable to raise the bond granted by the court. Consequently, I do hereby find and hold that the claim for false imprisonment was never proved. Similarly, the claims for exemplary damages and loss of income were never proved and are hereby rejected.
25. I have also noted that the trial magistrate did not assess damages. It is prudent and advisable for a magistrate to always assess damages even if the plaintiff failed to prove his claim so that in the event of a successful appeal it is not necessary to remit the case to the Magistrate to assess damages. In the case of JOEL KIMITHU MWANGI v SHADRACK KUIRA [2010] High Court Civil Appeal 80 of 2008 it was held that, “when a trial court dismisses a suit for damages based on a running down claim, it is obligatory that it assesses damages that it would have otherwise awarded had it found favor with the Plaintiff’s claim.
26. The magistrate should have assessed the appellant’s damages regardless of him failing in proving the same. Now that the appellant has succeeded in proving his case on malicious prosecution I do hereby award him general damages in the sum of Kshs. 1,000,000/= (Kenya Shillings One Million Only).
27. On the claim for special damages, the appellant had pleaded a sum of USD 45,000/= being legal fees incurred in defending the murder case. At the trial, the appellant produced a fee note from his advocate as well as payment receipts in support of the claim. I am satisfied that the claim was proved on a balance of probabilities.
28. The appellant is also entitled to the costs of the appeal and in the lower court case.
Disposition and Orders
i. The appeal is hereby allowed.
ii. The judgment of the lower court dismissing the appellant’s claim is hereby set aside and substituted with an order allowing the claim for malicious prosecution.
iii. The appellant is hereby awarded general damages of Kshs. 1,000,000/= for malicious prosecution.
iv. The appellant is hereby awarded special damages of USD 45,000/= as pleaded and proved.
v. The appellant is awarded costs of the appeal and in the lower court.
vi. Orders accordingly.
Dated, signed and delivered virtually via Microsoft Teams this 25 th day of June 2026.
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1. The appellant herein had been charged with the offence of murder contrary to section 203 as read with 204 of the Penal Code in Nairobi High Court Criminal Case No. 17 of 2015. The matter went to full hearing and the court found the appellant not guilty of and acquitted him under section 306 (1) of the Criminal Procedure Code.
2. Subsequently the appellant filed a civil suit being Civil Case No. E054 of 2021; Carl Gary Singleton v The Attorney General, claiming as against the respondent for general damages for false imprisonment and malicious prosecution. The plaintiff in his testimony testified that he had been cohabiting with the deceased Peris Ashley Akinyi Angumbi. That he was informed that she was diabetic. He stated that they once had a disagreement and the deceased made a report to the police alleging that he had destroyed her diabetic medicine. He stated that the police went to his house but he refused to open as he did not know that it was the police. He stated that the deceased died a few days later for failure to take her medication. He was subsequently arrested and charged with murdering the deceased. He stated that the police were malicious in charging him as they did not consider the cause of death. He denied flushing the drugs in the toilet or destroying them as alleged or at all. He stated that he believed that he was accused because of his nationality. He was arraigned in Milimani Law Court and charged with the offence of murder. He was granted a bond of Kshs. 3,000,000/- with two Kenya sureties of like amount which he was unable to get. The court also retained his passport. He stated that remained in remand for a period of two years and seven months until his acquittal on 8 th June 2017. He stated that the matter was heard and determined in his favor.
3. The defendant in its defence denied that the plaintiff was unlawfully arrested and maliciously prosecuted as alleged in the plaint and put the plaintiff to strict proof. The defendant averred that the prosecution that ensued was based on probable and reasonable suspicion that the plaintiff had committed the offence of murder against the deceased Peris Ashley Agumbi which action was punishable under the law and that the police acted pursuant to powers granted to them under the Constitution and the Police Act. It was the defendant’s position that a mere acquittal of the plaintiff the criminal case does not automatically mean that the prosecution was malicious. The defendant denied that the plaintiff had suffered any loss and put him to strict proof thereof.
4. The defendant called one witness, DW1 No. 235280, Chief Inspector Maurice Chemesis of DCI Hedquarters who indicated that he was the investigations officer in HCCR Number 17 of 2015 in which the plaintiff was charged with the offence of murder. He stated that the plaintiff was accused of flushing the deceased’s medication down the toilet and thereby caused her to succumb to diabetes.
5. On cross-examination he stated that the deceased and the plaintiff had been living in the same apartment although the deceased was a university student. He further acknowledged that the plaintiff had been acquitted of the charge and that the post mortem examination revealed that the cause of death was acute complication due to uncontrolled diabetes. He further acknowledged that the deceased had the opportunity to buy medicine or access treatment at any of the hospitals that she visited before her death. He concluded his testimony by stating that there was no malice in the prosecution of the plaintiff.
6. The learned Trial Magistrate in dismissing the plaintiff’s claim held that claim held that, “the prosecution of the plaintiff was for justifiable reason and as for confinement, I am satisfied that the plaintiff was taken to court on the same day hence no violation of his rights on that aspect. Subsequent confinement was due to inability to satisfy the bond terms given.”
7. Dissatisfied with the said judgment the appellant appealed the said decision and filed his memorandum of appeal dated 5 th June 2025 raising the following 8 grounds;
i. That the Learned Trial magistrate misdirected herself and erred in both law and fact that the appellant failed to prove malice in his claim for malicious prosecution.
ii. That the learned Trial Magistrate misdirected herself and erred in both law and fact that the prosecution was instituted by the defendant.
iii. That the learned trial magistrate misdirected herself and erred both in law and fact that the prosecution terminated in the plaintiff’s favour.
iv. That the learned trial magistrate misdirected herself and erred both in law and fact that the prosecution was instituted without reasonable and probable cause.
v. That the learned trial magistrate misdirected herself and erred both in law and fact that the prosecution was infact actuated by malice on the respondent’s part.
vi. That the learned trial magistrate misdirected herself and erred both in law and fact in her interpretation of the elements required to prove the tort of malicious prosecution.
vii. That the learned trial magistrate erred both in law and fact in failing to consider the appellant’s submissions on record and thus arrived at an erroneous conclusion.
viii. That the learned trial magistrate erred both in law and fact in failing to uphold precedent and the doctrine of stare decisis.
8. The appellant thus urged the Court to allow the appeal and set aside the order dismissing his case, that judgment be entered against the respondent as prayed in the plaint filed in the lower court.
9. Both parties filed written submissions. The appellant in his submissions argues that the analysis by the Learned trial Magistrate failed to take into account the following facts:
”that the deceased Ashley Peris Agumbi allegedly had an altercation with the plaintiff at the plaintiff’s house and reported the incident to the police on the 19 th November 2014 at 22.25 hours accusing the plaintiff of destroying her spectacles and her diabetes type 1 and hypertension medicines. That despite the deceased having had access to three different hospitals, Kihari Sub-District Hospital on 20 th November 2014 at 22.25 hours, Avenue Hospital on the 21 st November 2014 and finally Ladnan Hospital on 22 nd November 2014 where she finally passed away”
10. The appellant submitted that the above facts clearly indicate that the plaintiff did not have any contact with the deceased from 19 th November 2014 to 22 nd November 2014 and hence the absence of probable cause.
11. On malice, the appellant submitted that as per the trial court’s judgment, “the investigations officer elevated the extent of suspicion so high that he lost track of the evidence he was supposed to have availed in court.”
12. That the trial court also found the evidence adduced to be incredible and wanting. He submitted that the investigations officer having lost track of the evidence that he was supposed to avail in court is prima facie evidence of lack of reasonable and probable cause and this made the whole prosecution malicious. He relied on the case of Emmanuel Kuria Wa Gathoni v Attorney General [2007] eKLR where the court stated that , “where the police decide to deliberately decide not to take into account the version of the suspect and act on a story that eventually turns out to be improbable and on which no ordinary prudent and cautious man would have relied upon, that failure may constitute lack of reasonable and probable cause for the purpose of malicious prosecution.”
13. In buttressing his argument that the prosecution was without probable cause, the appellant’s counsel cited the sentiments of Lady Justice Hedwig Ong’undi in the murder case judgment where she stated as follows:
“There was no witness who has told this court exactly where the deceased was and what she was doing from the time she made the report to Kihari Police Station up to the time she landed in Aga Khan Hospital. Camilta would have unraveled this. The reason is that it is in the interest of justice for this court to know why a 4 th year university student did not find it necessary to access drugs for her special condition when she knew the implication of failing to do so. Had she wanted to, she would have accessed the drugs. I find that the failure to of the prosecution to call Camilta Nabwire as a witness draws adverse conclusion against the prosecution which knew that her evidence was not going to support its case.”
14. Counsel further submitted that the learned trial magistrate erred in failing to find that the investigating officer’s personal suspicion was insufficient evidence in both fact and law and failed the objective test that requires a prosecutor to conduct his investigations and to ensure that in order to constitute reasonable and probable cause, the prosecutor must examine the totality of the material within the knowledge of the prosecutor as at the time he instituted the prosecution. It was therefore submitted that the prosecution acted with malice by charging the appellant with the offence of murder without sufficient evidence to sustain a murder charge.
15. The respondent submitted that the trial magistrate did not err in both law and fact in finding that the appellant failed to prove his claim for malicious prosecution. It was submitted that the witness for the respondent testified that the agents of the respondent were not actuated by any ill-will or spite against the appellant in prosecuting him for the offence of murder and that they were just executing their statutory duties. That the police received a valid complaint from the deceased, issued a P3 form and recorded witness statements from the deceased which implicated the appellant to have assaulted her and eventually flushed her diabetes drugs down the toilet. It was submitted that for a plaintiff to prove malicious prosecution he must prove;
i. That the proceedings was instituted by the defendants or by someone for whose acts they are responsible
ii. That the prosecution was terminated in his favour
iii. That the prosecution was instituted without a reasonable and probable cause.
iv. That the prosecution was actuated by malice.
16. It was submitted that the appellant failed to prove that the prosecution was instituted without reasonable or probable cause and or that it was actuated by malice. The respondent further submitted that the appellant was not subjected to any false imprisonment as he was presented to court on 5/2/2015 after being arrested on the same day and that the remand period at Industrial Area Prison was as a result of a judicial order. The respondent therefore urged the court to reject the appeal and dismiss it with costs.
Analysis and Determination
17. I have carefully read and considered the pleadings, the evidence adduced as well as the submissions made. This being a first appeal, I am called upon to examine and evaluate the evidence and reach an independent conclusion bearing in mind that I did not hear or see the witnesses testify. It is settled law that for a plaintiff to prove malicious prosecution he must show that;
i. The prosecution was instituted by the defendant, or by someone for whose acts he is responsible;
ii. That the prosecution terminated in the plaintiff’s favour
iii. That the prosecution was instituted without reasonable and probable cause;
iv. That the prosecution was actuated by malice
18. In the case of Mbowa v East Mengo District Administration [1972] EA 352, Murunga v Attorney General [1979] KLR 138 the East Africa Court of Appeal held that, “the plaintiff, in order to succeed, has to prove that the four essentials or requirements of malicious prosecution, as set out above, have been fulfilled and that he has suffered damage. In other words, the four requirements must “unite” in order to create or establish a cause of action. If the plaintiff does not prove them he would fail in his action.”
19. It is not in dispute that the appellant was charged and subsequently acquitted. In acquitting the accused person, the High Court found that the element of suspicion was elevated so high making the investigations officer to lose track on what evidence he was supposed to avail in court. The appellant was never put on his defence as the prosecution did not establish a prima facie case against him.
20. The law is clear that being acquitted of the criminal charge does not necessarily connote malice on the part of the prosecutor. In the case of Nzoia Sugar Company Ltd v Fungututi [1988] KLR 399 , the Court of Appeal held that, “an acquittal per se on a criminal charge is not sufficient basis to ground a suit for malicious prosecution. Spite or ill-will must be proved against the prosecutor. The mental element of ill will or improper motive cannot be found in an artificial person like the appellant but there must be evidence of spite in one of its servants that can be attributed to the company”.
21. At paragraph 12 of the plaint, the appellant set out particulars of malice/absence of reasonable and probable cause as follows:
a) Inspector David K. Luchacha maliciously recorded in the occurrence book OB 15 of 19/11/2014 (Kihara Police Post) that the deceased alleged that the plaintiff assaulted her and destroyed her diabetes medication.
b) Inspector David K. Luchacha failed to treat the dying declaration in the OB with caution and suspicion.
c) The deceased had the opportunity to freely and independently access 4 hospitals; Kihara Sub-District Hospital, Aga Khan Hospital and Ladnan Hospital before she died.
22. The appellant further pleaded that the prosecution failed to consider the fact that the plaintiff had no contact with the deceased from the night of 19 th November 2014 to the 22 nd November 2014 when the deceased died. That the cause of death was due to diabetic ketoacidosis caused by the deceased’s non-compliance in taking her medication and had nothing to do with the plaintiff.
23. Taking all the above into consideration, this court hereby finds and holds that there was no reasonable and probable cause for charging the appellant with the offence of murder. The cause of death was clear and was not attributable to the appellant. As observed by the High Court in the murder trial, the deceased had access to medical care in at least three facilities and it is not clear why she never secured medication for her condition. The appellant could not be blamed for this and the decision to charge him must have been actuated by malice. I therefore find and hold that the learned trial magistrate erred in law in holding that the appellant had not established malice and/or lack of reasonable and probable cause. His prosecution was therefore malicious.
24. On the claim for false imprisonment, I have taken note of the fact that the appellant was presented to court the same day that he was arrested. The police did not detain him unlawfully. His remand at Industrial Area Prison during trial was pursuant to a lawful court order after he was unable to raise the bond granted by the court. Consequently, I do hereby find and hold that the claim for false imprisonment was never proved. Similarly, the claims for exemplary damages and loss of income were never proved and are hereby rejected.
25. I have also noted that the trial magistrate did not assess damages. It is prudent and advisable for a magistrate to always assess damages even if the plaintiff failed to prove his claim so that in the event of a successful appeal it is not necessary to remit the case to the Magistrate to assess damages. In the case of JOEL KIMITHU MWANGI v SHADRACK KUIRA [2010] High Court Civil Appeal 80 of 2008 it was held that, “when a trial court dismisses a suit for damages based on a running down claim, it is obligatory that it assesses damages that it would have otherwise awarded had it found favor with the Plaintiff’s claim.
26. The magistrate should have assessed the appellant’s damages regardless of him failing in proving the same. Now that the appellant has succeeded in proving his case on malicious prosecution I do hereby award him general damages in the sum of Kshs. 1,000,000/= (Kenya Shillings One Million Only).
27. On the claim for special damages, the appellant had pleaded a sum of USD 45,000/= being legal fees incurred in defending the murder case. At the trial, the appellant produced a fee note from his advocate as well as payment receipts in support of the claim. I am satisfied that the claim was proved on a balance of probabilities.
28. The appellant is also entitled to the costs of the appeal and in the lower court case.
Disposition and Orders
i. The appeal is hereby allowed.
ii. The judgment of the lower court dismissing the appellant’s claim is hereby set aside and substituted with an order allowing the claim for malicious prosecution.
iii. The appellant is hereby awarded general damages of Kshs. 1,000,000/= for malicious prosecution.
iv. The appellant is hereby awarded special damages of USD 45,000/= as pleaded and proved.
v. The appellant is awarded costs of the appeal and in the lower court.
vi. Orders accordingly.
Dated, signed and delivered virtually via Microsoft Teams this 25 th day of June 2026.
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