Background
1. The appellant instituted Murang’a CMCC No. 38 of 2016 against the respondents seeking special damages incurred in defending Murang’a Principal Magistrate’s Criminal Case No. 2865 of 2005; general, punitive and exemplary damages for unlawful arrest, false imprisonment, malicious prosecution, defamation, financial loss and injury to his personal credibility; costs and any other appropriate relief.
2. The appellant’s case was that he had served as Clerk to the then County Council of Murang’a. On or about 14th December 2005, the 1st respondent, who was then Chairman of the Council, allegedly reported that the appellant had defrauded the Council of funds through irregular insurance covers procured for its motor vehicles.
3. The complaint was initially referred to the Kenya Anti-Corruption Commission and subsequently to the Criminal Investigations Department at Murang’a. The appellant was thereafter arrested and charged with stealing contrary to section 275 of the Penal Code in Murang’a Principal Magistrate’s Criminal Case No. 2865 of 2005.
4. On 31st January 2007, after the prosecution closed its case, the criminal court found that the appellant had no case to answer and acquitted him under section 210 of the Criminal Procedure Code.
5. The appellant contended that the complaint was false, reckless and malicious; that the respondents failed to conduct proper investigations before his arrest and prosecution; and that the criminal proceedings caused him financial loss, mental anguish, embarrassment and injury to his reputation.
6. The respondents denied liability. The 1st respondent maintained that, as Chairman of the Council, he had received information concerning suspected loss of public funds and had acted in good faith by referring the matter to the appropriate investigative agency. He contended that the independent decision to arrest and prosecute the appellant was made by the police.
7. The 2nd respondent denied authorising the complaint and maintained that no resolution or minutes of the Council authorised the 1st respondent to institute the complaint on its behalf. The 3rd respondent denied that the appellant had been unlawfully arrested, detained or maliciously prosecuted and maintained that the police had acted in the lawful discharge of their statutory mandate.
8. At the trial, the appellant testified and called Peter Kuria Runo as his witness. The 1st respondent testified in his defence. The 2nd and 3rd respondents closed their respective cases without calling witnesses.
9. In the impugned judgment delivered on 17th November 2020, the learned trial magistrate found that although the criminal proceedings had terminated in the appellant’s favour, he had failed to prove that the respondents acted without reasonable and probable cause or that the prosecution was actuated by malice. The suit was consequently dismissed with costs.
The appeal
10. Aggrieved by that decision, the appellant lodged the present appeal upon the grounds that the learned trial magistrate erred by:
a) Finding that there was reasonable cause for his arrest and prosecution despite the alleged failure to undertake due diligence or proper investigations;
b) Finding that the arrest and prosecution were not malicious or undertaken in bad faith;
c) Failing to find that his arbitrary arrest, detention and prosecution violated his fundamental rights and freedoms;
d) Failing to consider that the agents of the 3rd respondent did not discharge their evidential burden in the criminal trial;
e) Failing to consider the appellant’s evidence adequately;
f) Failing to consider the financial loss, anguish, embarrassment and reputational injury suffered by the appellant;
g) Failing to find that the 1st respondent maliciously tarnished his name through publications in the local media; and
h) Failing to consider the appellant’s submissions and authorities.
11. The appellant therefore prayed that the judgment be set aside and the reliefs sought in the plaint be granted, together with the costs of the proceedings before the trial court and of this appeal.
Parties Submissions
12. The appellant submitted that the 1st respondent admitted making the complaint to the Kenya Anti-Corruption Commission and bypassing the Council’s internal audit processes. According to the appellant, the failure to seek an explanation from him or to produce documents establishing the alleged loss demonstrated that the complaint was malicious.
13. It was further submitted that the 3rd respondent did not call the investigating officer or produce evidence explaining the basis upon which the appellant was arrested and charged. The appellant maintained that his acquittal under section 210 of the Criminal Procedure Code confirmed that the prosecution was unsupported by evidence.
14. The appellant relied, among other authorities, on Kagane & Others v Attorney-General & Another [1969] EA 643, Thomas Mboya Oluoch & Another v Lucy Muthoni Stephen & Another [2005] eKLR, Samson John Nderitu v Attorney-General [2010] eKLR and Commissioner of Police & Director of Criminal Investigations Department v Kenya Commercial Bank Ltd & 4 Others [2013] eKLR.
15. On damages, the appellant reiterated the proposals made before the trial court, namely Kshs.10,000,000 as general and aggravated damages for unlawful arrest, false imprisonment and malicious prosecution; Kshs.4,000,000 for defamation and loss of credibility; Kshs.5,000,000 for violation of constitutional rights; Kshs.500,000 as exemplary damages; and special damages reflected in the receipts produced at the trial.
16. The 2nd respondent opposed the appeal. It submitted that the appellant failed to prove malice, spite, ill will or any improper motive. It maintained that the apparent loss or irregular handling of public funds was a matter that the responsible public officers were entitled, and indeed obliged, to report to the investigative authorities.
17. The 2nd respondent further submitted that an absence of reasonable cause does not, without more, establish malice and that the appellant had not discharged the burden of proving the claim on a balance of probabilities.
18. The 1st and 3rd respondents did not file submissions. Their failure to do so does not, however, relieve the appellant of the burden of demonstrating error in the impugned judgment and proving the constituent elements of his claim.
Issues for determination
19. Having considered the record of appeal, the supplementary record, the grounds of appeal and the submissions, the following issues arise for determination:
a) Whether the trial court properly evaluated the claim for malicious prosecution;
b) Whether unlawful arrest and false imprisonment were proved;
c) Whether the appellant proved defamation against any of the respondents;
d) Whether the appellant was entitled to the damages claimed; and
e) Who should bear the costs of the appeal.
Duty of the first appellate court
20. This being a first appeal, the Court is required to reconsider and independently evaluate the evidence and arrive at its own conclusions, while bearing in mind that it did not see or hear the witnesses testify.
21. In Selle & Another v Associated Motor Boat Co. Ltd & Others [1968] EA 123, the Court of Appeal held that a first appeal proceeds by way of a retrial and that the appellate court is not bound by the trial court’s findings where it is demonstrated that the court failed to take account of material circumstances or probabilities.
22. The Court must nevertheless exercise caution before interfering with findings founded upon the credibility and demeanour of witnesses whom the trial court had the advantage of seeing and hearing: see Peters v Sunday Post Ltd [1958] EA 424.
Whether malicious prosecution was proved
23. The essential elements of the tort of malicious prosecution are settled. In Mbowa v East Mengo District Administration [1972] EA 352, Kagane & Others v Attorney-General & Another [1969] EA 643, Murunga v Attorney-General [1979] KLR 138 and Nzoia Sugar Company Ltd v Fungututi [1988] KLR 399, the courts stated that a plaintiff must establish that:
a) The prosecution was instituted by the defendant or by someone for whose conduct the defendant is legally responsible;
b) The prosecution terminated in the plaintiff’s favour;
c) The prosecution was instituted without reasonable and probable cause; and
d) The prosecution was actuated by malice.
24. Those requirements are cumulative. Proof that the criminal proceedings terminated in favour of the plaintiff does not dispense with the requirement to prove absence of reasonable and probable cause and malice.
25. It was not disputed that the 1st respondent made or initiated the complaint concerning suspected loss of Council funds. He admitted referring the matter to the Kenya Anti-Corruption Commission, which subsequently referred it to the police for investigation.
26. However, the mere lodging of a complaint does not, without more, render the complainant liable for the subsequent arrest and prosecution. In Robert Okeri Ombeka v Central Bank of Kenya [2015] eKLR, the Court of Appeal recognised that liability does not ordinarily attach to a person who merely reports suspected criminal conduct and leaves the investigative agencies to exercise their independent statutory mandate. A complainant may nevertheless be liable where he knowingly supplies false information, withholds material facts or improperly procures the prosecution.
27. The evidence before the trial court did not establish that the 1st respondent arrested the appellant, formulated the charge or controlled the ensuing investigation and prosecution. Those functions were undertaken by the investigative and prosecutorial authorities.
28. The complaint indisputably set the investigative process in motion. The first requirement was therefore established against the 1st respondent to that limited extent, while the police and prosecution were responsible for the ultimate decision to arrest and charge the appellant.
29. As regards the 2nd respondent, no Council resolution, minute or other documentary evidence was produced demonstrating that the Council authorised the 1st respondent to make the complaint. The 2nd respondent’s pleaded case was that the 1st respondent acted on his own initiative.
30. Conversely, the 1st respondent stated that he acted in his official capacity as Council Chairman and in discharge of his oversight responsibility over public funds. Even assuming that he acted within the general scope of that office, vicarious liability could only arise if the appellant first proved that the complaint was tortious because it was made without reasonable cause and was actuated by malice. I now turn to those requirements.
Termination in the appellant’s favour
31. The criminal proceedings terminated in favour of the appellant when he was acquitted under section 210 of the Criminal Procedure Code. This ingredient was therefore satisfied.
32. The acquittal did not, however, conclusively establish that the original complaint was false, malicious or unsupported by reasonable grounds. In Nzoia Sugar Company Ltd v Fungututi [1988] KLR 399, the Court of Appeal emphasised that an acquittal alone is not sufficient to establish malicious prosecution.
33. The same principle was recently restated in Gachau & Another v Attorney-General & Another [2025] KEHC 11747 (KLR). The court held that an acquittal under section 210 satisfies only one element of the tort; the plaintiff must separately prove absence of reasonable and probable cause and the existence of malice.
Reasonable and probable cause
34. In Kagane & Others v Attorney-General & Another [1969] EA 643, reasonable and probable cause was described in terms of an objective test: whether the material known to the person instituting the prosecution was capable of satisfying an ordinarily prudent and cautious person that the accused was probably guilty of the offence alleged.
35. The question is not whether the appellant was ultimately proved guilty. It is whether, at the time the complaint was made and the prosecution initiated, credible circumstances existed which reasonably called for investigation and could support an honest suspicion that an offence had been committed.
36. The criminal proceedings disclosed an apparent irregularity involving insurance covers for Council motor vehicles. In particular, evidence emerged that six Council vehicles had overlapping or double insurance covers. Although the prosecution was ultimately unable to establish the precise amount allegedly lost or connect the appellant to criminal misappropriation to the required standard, the existence of overlapping insurance policies was a legitimate matter requiring investigation.
37. At the material time, the appellant had served as Clerk to the Council. He was therefore reasonably expected to have knowledge of, or access to information concerning, the relevant administrative and financial transactions. The fact that he was subsequently transferred did not render an inquiry into transactions undertaken during his tenure unreasonable.
38. The 1st respondent testified that he received information from the succeeding Clerk concerning irregularities and possible loss of Council funds. His decision to refer the matter to an investigative agency, rather than conduct an internal audit first, may be criticised as administratively precipitous. It does not, by itself, prove that the underlying suspicion was fabricated or that no reasonable basis existed for seeking an independent investigation.
39. The Kenya Anti-Corruption Commission did not immediately prosecute the appellant. It referred the matter to the Criminal Investigations Department, which conducted further investigations before the appellant was charged. The criminal record shows that witnesses were called and documentary evidence concerning the Council’s insurance arrangements was examined.
40. The appellant relied heavily upon the criminal court’s finding that the prosecution had not established a case requiring him to be placed on his defence. That finding related to whether the prosecution evidence attained the criminal threshold necessary to establish a prima facie case. It did not necessarily answer the distinct civil question whether there had initially been reasonable grounds for investigation and prosecution.
41. A prosecution may fail because witnesses are unavailable, records are incomplete, the evidence is insufficient to prove guilt beyond reasonable doubt, or the evidence does not establish every ingredient of the charge. Those deficiencies do not invariably mean that the prosecution was initiated without an honest and reasonable basis.
42. The fact that the respondents did not call the investigating officer during the civil trial did not reverse the burden of proof. Sections 107, 108 and 109 of the Evidence Act placed the burden upon the appellant to prove that the prosecution lacked reasonable and probable cause. That burden would only shift after the appellant presented evidence demonstrating, on a balance of probabilities, that the complaint or prosecution was baseless.
43. The Court is not persuaded that the appellant discharged that burden. The evidence of overlapping insurance covers supplied an objectively reasonable basis for investigation. Although the prosecution was ultimately unsuccessful, the evidence did not demonstrate that the complaint was wholly fabricated or that no reasonable person could have suspected financial impropriety.
Malice
44. Malice is distinct from absence of reasonable and probable cause. It connotes spite, ill will, an improper purpose, conscious misuse of the criminal process, or the absence of an honest belief in the complaint made.
45. In Gitau v Attorney-General [1990] KLR 13, the Court explained that malice may be inferred where the prosecution is motivated by something other than the proper invocation of the criminal law. However, it must arise from proved facts and cannot be presumed merely because a prosecution failed.
46. The appellant contended that malice was demonstrated by the 1st respondent’s decision to bypass the Council’s internal audit procedures and refer the matter directly to the Kenya Anti-Corruption Commission. The 1st respondent admitted that an internal audit mechanism was available.
47. In the Court’s view, bypassing an internal procedure was not, without additional evidence, proof of spite or an ulterior motive. The suspected loss involved public funds. Referral to an external investigative agency was not inherently irrational or unlawful. An internal audit and a criminal investigation are not mutually exclusive processes.
48. No evidence of a prior personal dispute, hostility, vendetta or other improper motive between the appellant and the 1st respondent was placed before the trial court. Neither was it established that the 1st respondent knew the information to be false or deliberately concealed material information from the investigators.
49. The appellant stated that he offered explanations which were ignored. The mere rejection or non-acceptance of a suspect’s explanation does not establish malice. Investigators are entitled to assess explanations alongside the other available material and determine whether further inquiry or prosecution is warranted.
50. In Gachau & Another v Attorney-General & Another [2025] KEHC 11747 (KLR), the court reiterated that the failure or weakness of a prosecution does not, standing alone, prove malice. A plaintiff must establish facts demonstrating that the prosecution was driven by spite, ill will or an ulterior purpose. Such evidence was absent in the present case.
51. I therefore find that the appellant failed to prove that the complaint, investigation or prosecution was actuated by malice.
52. Since absence of reasonable and probable cause and malice were not proved, the claim for malicious prosecution could not succeed against any of the respondents.
Unlawful arrest and false imprisonment
53. The appellant also sought damages for unlawful arrest and false imprisonment. Those causes of action are distinct from malicious prosecution and required independent proof.
54. The record shows that the appellant was arrested, brought before a court and released on a bond of Kshs.200,000 with one surety of a similar amount. No evidence was presented showing that he was detained beyond the constitutionally permissible period before being presented to court, or that his arrest and initial detention were carried out without lawful authority.
55. An eventual acquittal does not retrospectively render every preceding arrest or detention unlawful. The appellant was required to prove the specific period and circumstances of detention and demonstrate why it was not authorised by law. That evidence was not presented.
56. The claim for unlawful arrest and false imprisonment was therefore not established.
Defamation and reputational injury
57. The appellant alleged that the 1st respondent described him as a thief and caused damaging reports to be published in the media. A newspaper cutting was produced, and PW2 testified that the criminal allegations adversely affected the appellant’s reputation.
58. A claimant in defamation must prove the words complained of, that they referred to him, that they were published to a third party by or at the instance of the defendant, and that they were defamatory.
59. During cross-examination, the appellant admitted that the 1st respondent had not personally referred to him as a thief in his presence. PW2 similarly admitted that the newspaper article did not identify who supplied the relevant information to the publisher. The 1st respondent denied giving a statement or documents to the newspaper.
60. The journalist, editor or publisher was not called to identify the source of the publication. No other evidence directly connected the allegedly defamatory words to the 1st respondent or any of the other respondents.
61. Evidence that the appellant’s reputation suffered after he was publicly charged could demonstrate the consequences of the criminal proceedings, but it did not establish that the respondents authored or procured the impugned publication. Publication attributable to a particular respondent was an essential ingredient of the cause of action.
62. The claim in defamation was therefore not proved.
Limitation
63. The Court has noted that the criminal proceedings terminated on 31st January 2007, whereas the suit was instituted on 5th June 2014. Section 4(2) of the Limitation of Actions Act ordinarily prescribes three years for actions founded on tort and twelve months for actions founded on libel or slander.
64. The appellant had, however, obtained leave on 7th May 2014 to institute the suit out of time. A preliminary objection subsequently raised on limitation was dismissed by the trial court, and the respondents did not lodge a cross-appeal against that determination or substantively canvass it in this appeal.
65. Since the appeal can be conclusively determined upon the evidence and the substantive ingredients of the pleaded torts, it is unnecessary to make limitation the decisive basis of this judgment.
Damages
66. Having found that liability was not established, the appellant is not entitled to damages. Nevertheless, it is desirable for a trial court determining a claim for damages to state the award it would have made had liability been established. The trial court did not undertake that assessment.
67. The appellant sought special damages comprising legal fees, travel expenses and related expenditure incurred during the criminal proceedings. The plaint did not plead a specific total under this head.
68. The principle in Hahn v Singh [1985] KLR 716, subsequently affirmed in Capital Fish Kenya Ltd v Kenya Power & Lighting Company Ltd [2016] eKLR, is that special damages must be specifically pleaded and strictly proved. Producing receipts or computations at the hearing cannot cure the omission to plead a definite and ascertainable sum.
69. The special damages claim would therefore have failed even if liability had been established.
70. The appellant also sought Kshs.10,000,000 for unlawful arrest, false imprisonment and malicious prosecution; Kshs.4,000,000 for defamation; Kshs.5,000,000 for violation of constitutional rights; and Kshs.500,000 as exemplary damages.
71. The constitutional damages were not specifically founded upon an appropriately pleaded constitutional cause of action. Further, the material events occurred in 2005 and 2007, before the promulgation of the Constitution of Kenya, 2010, upon which the appellant principally relied. The 2010 Constitution does not operate retrospectively so as to create a new cause of action in respect of completed events.
72. Exemplary damages are exceptional and are not awarded merely because a claimant considers the defendant’s conduct objectionable. They require proof of oppressive, arbitrary or unconstitutional conduct by government servants, conduct calculated to yield a profit exceeding the likely compensation, or another recognised exceptional basis. No such circumstances were established.
73. In any event, the amounts proposed by the appellant were not supported by sufficiently comparable awards and were manifestly excessive in the circumstances disclosed by the record.
Disposition
74. Upon independently reconsidering the evidence, I agree with the ultimate conclusion of the learned trial magistrate, although the judgment could have addressed the evidence and applicable legal principles more fully.
75. The apparent irregularity involving overlapping insurance covers for Council vehicles supplied a reasonable basis for investigation. The subsequent acquittal of the appellant did not, without proof of absence of reasonable and probable cause and malice, establish the tort of malicious prosecution.
76. The appellant did not prove that the 1st respondent knowingly made a false complaint, improperly procured the prosecution or acted from spite, ill will or an ulterior motive. No actionable conduct was proved against the 2nd respondent, and the evidence did not establish a malicious or unlawful exercise of investigative power by the agents of the 3rd respondent.
77. The claims for unlawful arrest, false imprisonment, defamation and special damages were equally not established to the required standard.
78. The appeal therefore lacks merit.
Orders
The appeal is hereby dismissed.
1. The appellant instituted Murang’a CMCC No. 38 of 2016 against the respondents seeking special damages incurred in defending Murang’a Principal Magistrate’s Criminal Case No. 2865 of 2005; general, punitive and exemplary damages for unlawful arrest, false imprisonment, malicious prosecution, defamation, financial loss and injury to his personal credibility; costs and any other appropriate relief.
2. The appellant’s case was that he had served as Clerk to the then County Council of Murang’a. On or about 14th December 2005, the 1st respondent, who was then Chairman of the Council, allegedly reported that the appellant had defrauded the Council of funds through irregular insurance covers procured for its motor vehicles.
3. The complaint was initially referred to the Kenya Anti-Corruption Commission and subsequently to the Criminal Investigations Department at Murang’a. The appellant was thereafter arrested and charged with stealing contrary to section 275 of the Penal Code in Murang’a Principal Magistrate’s Criminal Case No. 2865 of 2005.
4. On 31st January 2007, after the prosecution closed its case, the criminal court found that the appellant had no case to answer and acquitted him under section 210 of the Criminal Procedure Code.
5. The appellant contended that the complaint was false, reckless and malicious; that the respondents failed to conduct proper investigations before his arrest and prosecution; and that the criminal proceedings caused him financial loss, mental anguish, embarrassment and injury to his reputation.
6. The respondents denied liability. The 1st respondent maintained that, as Chairman of the Council, he had received information concerning suspected loss of public funds and had acted in good faith by referring the matter to the appropriate investigative agency. He contended that the independent decision to arrest and prosecute the appellant was made by the police.
7. The 2nd respondent denied authorising the complaint and maintained that no resolution or minutes of the Council authorised the 1st respondent to institute the complaint on its behalf. The 3rd respondent denied that the appellant had been unlawfully arrested, detained or maliciously prosecuted and maintained that the police had acted in the lawful discharge of their statutory mandate.
8. At the trial, the appellant testified and called Peter Kuria Runo as his witness. The 1st respondent testified in his defence. The 2nd and 3rd respondents closed their respective cases without calling witnesses.
9. In the impugned judgment delivered on 17th November 2020, the learned trial magistrate found that although the criminal proceedings had terminated in the appellant’s favour, he had failed to prove that the respondents acted without reasonable and probable cause or that the prosecution was actuated by malice. The suit was consequently dismissed with costs.
The appeal
10. Aggrieved by that decision, the appellant lodged the present appeal upon the grounds that the learned trial magistrate erred by:
a) Finding that there was reasonable cause for his arrest and prosecution despite the alleged failure to undertake due diligence or proper investigations;
b) Finding that the arrest and prosecution were not malicious or undertaken in bad faith;
c) Failing to find that his arbitrary arrest, detention and prosecution violated his fundamental rights and freedoms;
d) Failing to consider that the agents of the 3rd respondent did not discharge their evidential burden in the criminal trial;
e) Failing to consider the appellant’s evidence adequately;
f) Failing to consider the financial loss, anguish, embarrassment and reputational injury suffered by the appellant;
g) Failing to find that the 1st respondent maliciously tarnished his name through publications in the local media; and
h) Failing to consider the appellant’s submissions and authorities.
11. The appellant therefore prayed that the judgment be set aside and the reliefs sought in the plaint be granted, together with the costs of the proceedings before the trial court and of this appeal.
Parties Submissions
12. The appellant submitted that the 1st respondent admitted making the complaint to the Kenya Anti-Corruption Commission and bypassing the Council’s internal audit processes. According to the appellant, the failure to seek an explanation from him or to produce documents establishing the alleged loss demonstrated that the complaint was malicious.
13. It was further submitted that the 3rd respondent did not call the investigating officer or produce evidence explaining the basis upon which the appellant was arrested and charged. The appellant maintained that his acquittal under section 210 of the Criminal Procedure Code confirmed that the prosecution was unsupported by evidence.
14. The appellant relied, among other authorities, on Kagane & Others v Attorney-General & Another [1969] EA 643, Thomas Mboya Oluoch & Another v Lucy Muthoni Stephen & Another [2005] eKLR, Samson John Nderitu v Attorney-General [2010] eKLR and Commissioner of Police & Director of Criminal Investigations Department v Kenya Commercial Bank Ltd & 4 Others [2013] eKLR.
15. On damages, the appellant reiterated the proposals made before the trial court, namely Kshs.10,000,000 as general and aggravated damages for unlawful arrest, false imprisonment and malicious prosecution; Kshs.4,000,000 for defamation and loss of credibility; Kshs.5,000,000 for violation of constitutional rights; Kshs.500,000 as exemplary damages; and special damages reflected in the receipts produced at the trial.
16. The 2nd respondent opposed the appeal. It submitted that the appellant failed to prove malice, spite, ill will or any improper motive. It maintained that the apparent loss or irregular handling of public funds was a matter that the responsible public officers were entitled, and indeed obliged, to report to the investigative authorities.
17. The 2nd respondent further submitted that an absence of reasonable cause does not, without more, establish malice and that the appellant had not discharged the burden of proving the claim on a balance of probabilities.
18. The 1st and 3rd respondents did not file submissions. Their failure to do so does not, however, relieve the appellant of the burden of demonstrating error in the impugned judgment and proving the constituent elements of his claim.
Issues for determination
19. Having considered the record of appeal, the supplementary record, the grounds of appeal and the submissions, the following issues arise for determination:
a) Whether the trial court properly evaluated the claim for malicious prosecution;
b) Whether unlawful arrest and false imprisonment were proved;
c) Whether the appellant proved defamation against any of the respondents;
d) Whether the appellant was entitled to the damages claimed; and
e) Who should bear the costs of the appeal.
Duty of the first appellate court
20. This being a first appeal, the Court is required to reconsider and independently evaluate the evidence and arrive at its own conclusions, while bearing in mind that it did not see or hear the witnesses testify.
21. In Selle & Another v Associated Motor Boat Co. Ltd & Others [1968] EA 123, the Court of Appeal held that a first appeal proceeds by way of a retrial and that the appellate court is not bound by the trial court’s findings where it is demonstrated that the court failed to take account of material circumstances or probabilities.
22. The Court must nevertheless exercise caution before interfering with findings founded upon the credibility and demeanour of witnesses whom the trial court had the advantage of seeing and hearing: see Peters v Sunday Post Ltd [1958] EA 424.
Whether malicious prosecution was proved
23. The essential elements of the tort of malicious prosecution are settled. In Mbowa v East Mengo District Administration [1972] EA 352, Kagane & Others v Attorney-General & Another [1969] EA 643, Murunga v Attorney-General [1979] KLR 138 and Nzoia Sugar Company Ltd v Fungututi [1988] KLR 399, the courts stated that a plaintiff must establish that:
a) The prosecution was instituted by the defendant or by someone for whose conduct the defendant is legally responsible;
b) The prosecution terminated in the plaintiff’s favour;
c) The prosecution was instituted without reasonable and probable cause; and
d) The prosecution was actuated by malice.
24. Those requirements are cumulative. Proof that the criminal proceedings terminated in favour of the plaintiff does not dispense with the requirement to prove absence of reasonable and probable cause and malice.
25. It was not disputed that the 1st respondent made or initiated the complaint concerning suspected loss of Council funds. He admitted referring the matter to the Kenya Anti-Corruption Commission, which subsequently referred it to the police for investigation.
26. However, the mere lodging of a complaint does not, without more, render the complainant liable for the subsequent arrest and prosecution. In Robert Okeri Ombeka v Central Bank of Kenya [2015] eKLR, the Court of Appeal recognised that liability does not ordinarily attach to a person who merely reports suspected criminal conduct and leaves the investigative agencies to exercise their independent statutory mandate. A complainant may nevertheless be liable where he knowingly supplies false information, withholds material facts or improperly procures the prosecution.
27. The evidence before the trial court did not establish that the 1st respondent arrested the appellant, formulated the charge or controlled the ensuing investigation and prosecution. Those functions were undertaken by the investigative and prosecutorial authorities.
28. The complaint indisputably set the investigative process in motion. The first requirement was therefore established against the 1st respondent to that limited extent, while the police and prosecution were responsible for the ultimate decision to arrest and charge the appellant.
29. As regards the 2nd respondent, no Council resolution, minute or other documentary evidence was produced demonstrating that the Council authorised the 1st respondent to make the complaint. The 2nd respondent’s pleaded case was that the 1st respondent acted on his own initiative.
30. Conversely, the 1st respondent stated that he acted in his official capacity as Council Chairman and in discharge of his oversight responsibility over public funds. Even assuming that he acted within the general scope of that office, vicarious liability could only arise if the appellant first proved that the complaint was tortious because it was made without reasonable cause and was actuated by malice. I now turn to those requirements.
Termination in the appellant’s favour
31. The criminal proceedings terminated in favour of the appellant when he was acquitted under section 210 of the Criminal Procedure Code. This ingredient was therefore satisfied.
32. The acquittal did not, however, conclusively establish that the original complaint was false, malicious or unsupported by reasonable grounds. In Nzoia Sugar Company Ltd v Fungututi [1988] KLR 399, the Court of Appeal emphasised that an acquittal alone is not sufficient to establish malicious prosecution.
33. The same principle was recently restated in Gachau & Another v Attorney-General & Another [2025] KEHC 11747 (KLR). The court held that an acquittal under section 210 satisfies only one element of the tort; the plaintiff must separately prove absence of reasonable and probable cause and the existence of malice.
Reasonable and probable cause
34. In Kagane & Others v Attorney-General & Another [1969] EA 643, reasonable and probable cause was described in terms of an objective test: whether the material known to the person instituting the prosecution was capable of satisfying an ordinarily prudent and cautious person that the accused was probably guilty of the offence alleged.
35. The question is not whether the appellant was ultimately proved guilty. It is whether, at the time the complaint was made and the prosecution initiated, credible circumstances existed which reasonably called for investigation and could support an honest suspicion that an offence had been committed.
36. The criminal proceedings disclosed an apparent irregularity involving insurance covers for Council motor vehicles. In particular, evidence emerged that six Council vehicles had overlapping or double insurance covers. Although the prosecution was ultimately unable to establish the precise amount allegedly lost or connect the appellant to criminal misappropriation to the required standard, the existence of overlapping insurance policies was a legitimate matter requiring investigation.
37. At the material time, the appellant had served as Clerk to the Council. He was therefore reasonably expected to have knowledge of, or access to information concerning, the relevant administrative and financial transactions. The fact that he was subsequently transferred did not render an inquiry into transactions undertaken during his tenure unreasonable.
38. The 1st respondent testified that he received information from the succeeding Clerk concerning irregularities and possible loss of Council funds. His decision to refer the matter to an investigative agency, rather than conduct an internal audit first, may be criticised as administratively precipitous. It does not, by itself, prove that the underlying suspicion was fabricated or that no reasonable basis existed for seeking an independent investigation.
39. The Kenya Anti-Corruption Commission did not immediately prosecute the appellant. It referred the matter to the Criminal Investigations Department, which conducted further investigations before the appellant was charged. The criminal record shows that witnesses were called and documentary evidence concerning the Council’s insurance arrangements was examined.
40. The appellant relied heavily upon the criminal court’s finding that the prosecution had not established a case requiring him to be placed on his defence. That finding related to whether the prosecution evidence attained the criminal threshold necessary to establish a prima facie case. It did not necessarily answer the distinct civil question whether there had initially been reasonable grounds for investigation and prosecution.
41. A prosecution may fail because witnesses are unavailable, records are incomplete, the evidence is insufficient to prove guilt beyond reasonable doubt, or the evidence does not establish every ingredient of the charge. Those deficiencies do not invariably mean that the prosecution was initiated without an honest and reasonable basis.
42. The fact that the respondents did not call the investigating officer during the civil trial did not reverse the burden of proof. Sections 107, 108 and 109 of the Evidence Act placed the burden upon the appellant to prove that the prosecution lacked reasonable and probable cause. That burden would only shift after the appellant presented evidence demonstrating, on a balance of probabilities, that the complaint or prosecution was baseless.
43. The Court is not persuaded that the appellant discharged that burden. The evidence of overlapping insurance covers supplied an objectively reasonable basis for investigation. Although the prosecution was ultimately unsuccessful, the evidence did not demonstrate that the complaint was wholly fabricated or that no reasonable person could have suspected financial impropriety.
Malice
44. Malice is distinct from absence of reasonable and probable cause. It connotes spite, ill will, an improper purpose, conscious misuse of the criminal process, or the absence of an honest belief in the complaint made.
45. In Gitau v Attorney-General [1990] KLR 13, the Court explained that malice may be inferred where the prosecution is motivated by something other than the proper invocation of the criminal law. However, it must arise from proved facts and cannot be presumed merely because a prosecution failed.
46. The appellant contended that malice was demonstrated by the 1st respondent’s decision to bypass the Council’s internal audit procedures and refer the matter directly to the Kenya Anti-Corruption Commission. The 1st respondent admitted that an internal audit mechanism was available.
47. In the Court’s view, bypassing an internal procedure was not, without additional evidence, proof of spite or an ulterior motive. The suspected loss involved public funds. Referral to an external investigative agency was not inherently irrational or unlawful. An internal audit and a criminal investigation are not mutually exclusive processes.
48. No evidence of a prior personal dispute, hostility, vendetta or other improper motive between the appellant and the 1st respondent was placed before the trial court. Neither was it established that the 1st respondent knew the information to be false or deliberately concealed material information from the investigators.
49. The appellant stated that he offered explanations which were ignored. The mere rejection or non-acceptance of a suspect’s explanation does not establish malice. Investigators are entitled to assess explanations alongside the other available material and determine whether further inquiry or prosecution is warranted.
50. In Gachau & Another v Attorney-General & Another [2025] KEHC 11747 (KLR), the court reiterated that the failure or weakness of a prosecution does not, standing alone, prove malice. A plaintiff must establish facts demonstrating that the prosecution was driven by spite, ill will or an ulterior purpose. Such evidence was absent in the present case.
51. I therefore find that the appellant failed to prove that the complaint, investigation or prosecution was actuated by malice.
52. Since absence of reasonable and probable cause and malice were not proved, the claim for malicious prosecution could not succeed against any of the respondents.
Unlawful arrest and false imprisonment
53. The appellant also sought damages for unlawful arrest and false imprisonment. Those causes of action are distinct from malicious prosecution and required independent proof.
54. The record shows that the appellant was arrested, brought before a court and released on a bond of Kshs.200,000 with one surety of a similar amount. No evidence was presented showing that he was detained beyond the constitutionally permissible period before being presented to court, or that his arrest and initial detention were carried out without lawful authority.
55. An eventual acquittal does not retrospectively render every preceding arrest or detention unlawful. The appellant was required to prove the specific period and circumstances of detention and demonstrate why it was not authorised by law. That evidence was not presented.
56. The claim for unlawful arrest and false imprisonment was therefore not established.
Defamation and reputational injury
57. The appellant alleged that the 1st respondent described him as a thief and caused damaging reports to be published in the media. A newspaper cutting was produced, and PW2 testified that the criminal allegations adversely affected the appellant’s reputation.
58. A claimant in defamation must prove the words complained of, that they referred to him, that they were published to a third party by or at the instance of the defendant, and that they were defamatory.
59. During cross-examination, the appellant admitted that the 1st respondent had not personally referred to him as a thief in his presence. PW2 similarly admitted that the newspaper article did not identify who supplied the relevant information to the publisher. The 1st respondent denied giving a statement or documents to the newspaper.
60. The journalist, editor or publisher was not called to identify the source of the publication. No other evidence directly connected the allegedly defamatory words to the 1st respondent or any of the other respondents.
61. Evidence that the appellant’s reputation suffered after he was publicly charged could demonstrate the consequences of the criminal proceedings, but it did not establish that the respondents authored or procured the impugned publication. Publication attributable to a particular respondent was an essential ingredient of the cause of action.
62. The claim in defamation was therefore not proved.
Limitation
63. The Court has noted that the criminal proceedings terminated on 31st January 2007, whereas the suit was instituted on 5th June 2014. Section 4(2) of the Limitation of Actions Act ordinarily prescribes three years for actions founded on tort and twelve months for actions founded on libel or slander.
64. The appellant had, however, obtained leave on 7th May 2014 to institute the suit out of time. A preliminary objection subsequently raised on limitation was dismissed by the trial court, and the respondents did not lodge a cross-appeal against that determination or substantively canvass it in this appeal.
65. Since the appeal can be conclusively determined upon the evidence and the substantive ingredients of the pleaded torts, it is unnecessary to make limitation the decisive basis of this judgment.
Damages
66. Having found that liability was not established, the appellant is not entitled to damages. Nevertheless, it is desirable for a trial court determining a claim for damages to state the award it would have made had liability been established. The trial court did not undertake that assessment.
67. The appellant sought special damages comprising legal fees, travel expenses and related expenditure incurred during the criminal proceedings. The plaint did not plead a specific total under this head.
68. The principle in Hahn v Singh [1985] KLR 716, subsequently affirmed in Capital Fish Kenya Ltd v Kenya Power & Lighting Company Ltd [2016] eKLR, is that special damages must be specifically pleaded and strictly proved. Producing receipts or computations at the hearing cannot cure the omission to plead a definite and ascertainable sum.
69. The special damages claim would therefore have failed even if liability had been established.
70. The appellant also sought Kshs.10,000,000 for unlawful arrest, false imprisonment and malicious prosecution; Kshs.4,000,000 for defamation; Kshs.5,000,000 for violation of constitutional rights; and Kshs.500,000 as exemplary damages.
71. The constitutional damages were not specifically founded upon an appropriately pleaded constitutional cause of action. Further, the material events occurred in 2005 and 2007, before the promulgation of the Constitution of Kenya, 2010, upon which the appellant principally relied. The 2010 Constitution does not operate retrospectively so as to create a new cause of action in respect of completed events.
72. Exemplary damages are exceptional and are not awarded merely because a claimant considers the defendant’s conduct objectionable. They require proof of oppressive, arbitrary or unconstitutional conduct by government servants, conduct calculated to yield a profit exceeding the likely compensation, or another recognised exceptional basis. No such circumstances were established.
73. In any event, the amounts proposed by the appellant were not supported by sufficiently comparable awards and were manifestly excessive in the circumstances disclosed by the record.
Disposition
74. Upon independently reconsidering the evidence, I agree with the ultimate conclusion of the learned trial magistrate, although the judgment could have addressed the evidence and applicable legal principles more fully.
75. The apparent irregularity involving overlapping insurance covers for Council vehicles supplied a reasonable basis for investigation. The subsequent acquittal of the appellant did not, without proof of absence of reasonable and probable cause and malice, establish the tort of malicious prosecution.
76. The appellant did not prove that the 1st respondent knowingly made a false complaint, improperly procured the prosecution or acted from spite, ill will or an ulterior motive. No actionable conduct was proved against the 2nd respondent, and the evidence did not establish a malicious or unlawful exercise of investigative power by the agents of the 3rd respondent.
77. The claims for unlawful arrest, false imprisonment, defamation and special damages were equally not established to the required standard.
78. The appeal therefore lacks merit.
Orders
The appeal is hereby dismissed.