https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12496

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MOMBASA** **CIVIL APPEAL NO. E371 OF 2023** **ATTORNEY GENERAL ............................................................ APPELLANT** **VERSUS** **TITUS MAWEU MUSAU ....................................................... RESPONDENT** ***(Being an appeal arising from the Judgement delivered on 30th November 2023 by Hon. J. B. Kalo (CM) in Mombasa CMCC No. 224 of 2016)*** **JUDGEMENT** 1. In his plaint dated 22nd July, 2010 the Respondent averred that on or about the14th July, 2005 the plaintiff was arrested at his place of work at Nyali Beach Hotel, Mombasa and locked up in Port Police Station.Subsequently, the respondent was arraigned in court and charged in High Court of Kenya at Mombasa in High Court Criminal Case No. 23 of 2005 with the offence of murder contrary to Section 203 as read with section 204 of the Penal Code. 2. In the criminal case, the respondent averred, it was alleged that on the night of 26th October 2004 at Magongo, New Night Club, Changamwe in Mombasa, the respondent murdered Daniel King’oo Kiilu and was remanded in custody until 24th July, 2009 when he was acquitted. In his plaint,the respondent contended that his imprisonment was false. He, therefore, sought General damages for false imprisonment and malicious prosecution against the appellant. He also sought special damages, exemplary damages and costs of the suit. 3. In response, appellant filed a statement of defence dated 16/5/2012 denying the respondent’s claims. The appellant also averred the respondent was arrested based on reasonable belief that he committed an offence following a report made to the police. 4. In his judgement, the trial magistrate found the defendant liable and entered judgement for the plaintiff against the defendant as follows: 5. Liability - 100% 6. General damages - Ksh. 4,000,000 7. Special damages - Ksh. 120,000 8. Costs of the suit 9. Interest at court rates on (b) and (d) from the date of judgement and (c) from the date of filing this suit until payment in full. 10. Being dissatisfied, the appellant preferred this appeal. The appeal is based on the following 5 grounds: 11. That the learned trial magistrate erred in law and fact in finding that the respondent had proved his case against the appellant on a balance of probabilities. 12. That the learned magistrate erred in law and fact in finding the respondent proved his claim of malicious prosecution against the appellant yet the respondent was found with a case to answer in Mombasa HC Criminal Case No. 205 of 2005 . 13. That the learned magistrate erred in law and fact in awarding the respondent Ksh.4,120,000 despite the same not being pleaded by the appellant. 14. PW1,the respondent, stated that he worked for Nyali Hotel Public Relations Department and was also a freelance journalist. In respect to this matter, the respondent, stated that he was maliciously prosecuted after being charged with murder and was acquitted by the High Court on 24/7/2009. He produced a copy of the High Court Judgement marked P. Exhibit No. 1. 15. PW1 also stated that he worked as a police reservist and had a firearm. On 26/11/204 the respondent stated he went to Magongo night club and a watchman who knew he was a police officer approached him and told him there were suspicious characters in the club counting money and showed him where they were seated. The respondent, further, stated he called 999 and the duty officer and his driver from Changamwe Police Station came after one hour and questioned one of the dubious characters who became violent, hit the duty officer and snatched the officer’s gun. The driver who was at a distance, the respondent stated, shot the character to recover the gun and the man was taken to hospital but passed on after two weeks. Investigations were conducted one year later, the respondent stated, and he was arrested at his place of work and charged with murder on 26/10/2005 together with the police driver. 16. The appellant, further, stated he was held at Port Police Station for one week and remanded at Shimo la Tewa police station for 4 years until he was acquitted on 24.7.2009. 17. Before his arrest, the respondent stated, he lived with his child who was in class 5 and he stopped schooling after his incarceration. He also stated his girlfriend’s business collapsed. 18. On cross-examination, the appellant stated that he had a contract with Leisure Lodge dated 7.5.2001 but he was dismissed. He, further, stated he had a contract with Nyali Beach Hotel dated 29.4.2002 which was also terminated. He, however, admitted that he did not have a receipt for special damages of Ksh.120,000 claimed for legal fees. He also stated that his daughter dropped out of school and his girlfriend left after he was incarcerated. 19. When he was released from prison, the respondent stated, he found that his wife married someone else and moved away with his three children. The respondent stated that his shop also got closed, all his media contacts were closed and police terminated their relationship with him on account that he was a murderer without being paid any benefits. Finally, the respondent stated that his alleged malicious prosecution caused him financial loses, trauma, stress, prejudice and lifetime dented ego. 20. The appellant did not call any witnesses. The issues for determination by the court in this matter: - 21. Whether the respondent proved case of false imprisonment and malicious prosecution against the appellant on a balance of probabilities. 22. Whether the amount of Ksh. 4,120,000 awarded to the respondent was pleaded and justified. 23. In ***Clerk and Lindsall on Torts 11th Edition (1954) Sweet and Maxwell (Paragraph 1413 and 1415)*** it is stated: - “***It is the malicious preferring an unreasonable criminal charge that is the usual foundation for the form of action under consideration ............... In action for malicious prosecution, the plaintiff must show he was prosecuted by the defendant, that is to say that the law was set in motion against him on a charge, secondly that the prosecution was determined in his favour, thirdly that it was reasonable and probable cause, fourthly that it was malicious. The onus of proving every one of these is on the plaintiff.”*** 1. In ***Mbowa -vs- East Mengo District Administration (1972) EA352*** the East African Court of Appeal set out the law on malicious prosecution as follows: - “***The action for malicious prosecution in part of the common law of England. The tort of malicious prosecution is committed where there is no legal reason for instituting criminal proceedings. The purpose of the prosecution would be personal and spite rather than for public benefit...... It occurs as a result of abuse of minds of judicial authorities whose responsibility is to administer criminal justice. It suggests the existence of malice and distortion of truth. Its essential ingredients are: -*** 1. **The criminal proceedings must be instituted by the defendant, that is instrumental in setting the law in motion against the plaintiff and suffices if he lays information before a judicial authority who then issues a warrant of arrest of the plaintiff or a person arrests the plaintiff and takes him before judicial authority.** 2. **The defendant must have acted without reasonable or probable cause i. e. there must have been no facts, with no reasonable grounds, the defendant genuinely thought that the criminal proceedings were justified.** 3. **The defendant must have acted maliciously. In other words, the defendant must have acted with an improper and wrong motive, that is, he must have had an “intent” to use Legal process in question for some other than its legally appointed and appropriate purpose.”** **Pike -vs- Waldrum (1952) 1 Lloyd’s Rep. 431 at P452.** 1. **The criminal proceedings must be terminated in the Plaintiff’s favour, that is, the plaintiff shows the proceedings were brought to a legal end and that he has been acquitted of the charge ...”** 2. Lord Denning pointed out **GLINSKI -vs- MCLVER (1962) DC 772** **of** **758:** “***In order to succeed in action for malicious prosecution, the plaintiff must prove to the satisfaction of the judge that, at the time when the charge was made, there was an absence of reasonable and probable cause for the prosecution”.*** Lord Denning further stressed: ***“ It is not necessary for the prosecutor in person of a CPS lawyer or a police officer to believe in the guilt of the person accused, he has only to be satisfied that there is proper case to lay before the court.Guilt or innocence is for the tribunal and not for him.”*** 1. *In the case of* ***George Masinde Murunga -vs- Attorney General (1983) eKLR 138*** the court set the test to establish whether a prosecution was instigated without reasonable or probable cause. The four elements required to prove a claim of malicious prosecution are: - 2. That the impugned prosecution did fake place. 3. That the prosecution terminated in the plaintiff’s favour. 4. That the prosecution was instituted without reasonable or probable cause. 5. That the prosecution was activated by malice. 6. Further, in the case of HICK -vs- Falkner (1978)8QBD it was held: “***Reasonable and probable cause is an honest belief in the guilt of the accused based on full conviction founded upon reasonable grounds of the existence of state of circumstance, which assuming them to be true would reasonably lead an ordinary prudent and cautious man placed in the position of the accused to the extent of believing that the accuser is probably guilty of the crime ......................”.*** 1. The above position was reiterated in the case of ***Kegame -vs- Attorney General & Another (1969) EA 643*** in which the court held: - “***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 the material consisted of facts discovered by the prosecution 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.”*** 1. In this case the respondent was charged with murder in Mombasa HC Criminal case No. 23 of 2005. Although he was acquitted of the charge, he was found to have a case and put on his defence. It is this court’s finding that the prosecution of the accused was not malicious, but was based on reasonable and probable cause based on the report made to the police and therefore, the appellant is not liable. 2. In arriving at the above position, this court is guided by the decision in the case of ***Krystalline Salt Limited -vs- Ngolo & 6 Others Civil Appeal No. 11 of 2023 (2023)KEHC 20337(KLR) 7th November 2023*** in which Justice Kizito Magara posited; - “***This means neither the Complainant nor the investigator are responsible for prosecution. Once the appellant was placed on his defence, his goose was cooked, fried and eaten. It would be pretentious to analyse the rest of the evidence upon finding that they had a case to answer. The surrounding circumstance equally vindicates the court….”*** 1. Having found that the appellant is not liable in this matter, this court needs not to delve into the question of quantum of damages suffice to say the claim for Khs.120,000 being alleged legal fees was not proved strictly by provided law as required for special damages. 2. The upshot of my findings above is that appeal is merited and therefore, the same is allowed. Consequently, trial court’s judgement of the is set aside and the respondent’s suit is dismissed. As the appellant was acquitted after being in custody for 4 years, this court will not condemn him to pay costs. Dated, signed and virtually delivered on line via MS teams this 27th day of July 2026**.** **HON. P. K. Rotich** **JUDGE** **In the presence of: -** Ms. Choni h/b for Mr. Derick Odhiambo for the respondent Mr. Waga for the Applicant