Ooko v Director of Prosecution & another (Civil Suit E006 of 2021) [2026] KEHC 9859 (KLR) (Civ) (25 June 2026) (Judgment)

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **MILIMANI LAW COURTS CIVIL DIVISION** **CIVIL SUIT NO. E006 OF 2021** **JOAB OOKO…………………………………………………..PLAINTIFF** **VERSUS** **DIRECTOR OF PROSECUTION…………………..1ST DEFENDANT** **HONOURABLE ATTORNEY GENERAL……......2ND DEFENDANT** **JUDGEMENT** 1. The following three (3) civil suits were consolidated; 2. ***Nairobi HCC suit No E005 of 2021 BORU GUYO MOLE Vs DIRECTOR OF PUBLIC PROSECUTION & HON ATTORNEY GENERAL*** 3. ***Nairobi HCC suit No E006 of 2021 JOAB OOKO Vs DIRECTOR OF PUBLIC PROSECUTION & HON ATTORNEY GENERAL*** 4. ***Nairobi HCC suit No E007 of 2021 BENECT ABONYO OMOLLO Vs DIRECTOR OF PUBLIC PROSECUTION & HON ATTORNEY GENERAL*** 5. The three plaintiffs sued DIRECTOR OF PUBLIC PROSECUTION (DPP) and the ATTORNEY GENERAL (The AG) in similar plaints seeking the following; * 1. ***General damages for malicious prosecution*** 2. ***General damages for unlawful arrest and detention*** 3. ***Exemplary damages*** 4. ***Costs of the suit and interest*** 5. ***Interest on (i), (ii) and (iii) above*** 6. The plaintiffs in summary averred in their plaints that they were employed in the Accounts Department at the Judiciary of Kenya. 7. On or about 19th September 2013, each of the plaintiffs was unlawfully arrested by police officers from the Banking Fraud Investigation Unit following a report of suspected fraudulent activities within the Judiciary’s accounting department. 8. After their arrests, the plaintiffs were maliciously kept in custody under degrading conditions for a period exceeding the constitutionally stipulated 24 hours, and they were only charged in court on 23rd September 2013 with trumped-up charges. 9. All the plaintiffs were charged in Criminal Case Number 1457 of 2013 at the City Court with conspiracy to commit a felony contrary to section 393 of the Penal Code, alleging that they jointly with others not before court conspired to steal Kshs. 80,013,302/- belonging to the Judiciary of Kenya. 10. The plaintiffs contend that prior to being arraigned, their employer, the Judicial Service Commission, had resolved on 20th September 2013 that Judiciary staff arrested in connection with the suspected fraud should not be charged until investigations were concluded and a report received, but the Defendants ignored this communication and proceeded to charge them. 11. The plaintiffs further contend that they wrote several complaints to the 1st Defendant regarding shoddy investigations by the Banking Fraud Investigations Unit, and although the 1st Defendant promised a comprehensive inquiry, they never received any feedback. 12. Instead of feedback, subsequent to their arraignment on 23rd September 2013, two other court files were consolidated with Criminal Case Number 1457 of 2013, and a new charge sheet dated 18th September 2015 was presented, repeating the same allegation of conspiracy to steal Kshs. 80,013,302/-. 13. After a trial was conducted, each plaintiff was acquitted of all charges vide a judgment dated 10th January 2020, having been found not guilty. 14. The plaintiffs contend that their arrests, unconstitutional detentions, and prosecutions were instigated and perpetuated by malice on the part of the Defendants, their servants, or agents, with particulars including: detaining the plaintiffs beyond 24 hours; arresting them without proper investigations. 15. Further, that the defendants failed to act independently and impartially; ignoring exonerating evidence; selectively prosecuting the plaintiffs; and acting to protect private interests rather than the public interest. 16. As a result of the trumped-up charges, each plaintiff were interdicted from their employment at the Judiciary and has not been reinstated to date, right-thinking members of society avoided them, their colleagues and peers shunned them completely, and they lost other job opportunities owing to the prosecution, which lasted for seven years. 17. Due to the foregoing, the plaintiffs suffered mental anguish, loss of reputation and esteem, and loss of earnings, and they claim special damages for costs incurred in defending themselves in the criminal suits. 18. The first plaintiff pleaded legal fees of Kshs. 297,500 and transport and accommodation expenses of Kshs. 57,950 totalling Kshs. 355,450. 19. The plaintiffs therefore pray for judgment against the Defendants jointly and severally for: general damages for malicious prosecution; general damages for unlawful arrest and detention; exemplary damages; special damages and costs of the suit together with interest; and interest on the general and exemplary damages. 20. The defendants filed identical defences dated 19/4/2021 in each of the consolidated cases and denied all allegations in the Plaint. 21. In the alternative, the Defendants state that if the Plaintiff was arrested and charged, it was done following a legitimate complaint, proper police investigations, and in execution of statutory police duties. 22. They stated that thei statutory duties of the police include: receiving information on cognisable offences, investigating upon reasonable cause, apprehending suspected offenders, and instituting criminal proceedings. 23. The Defendants pray that the Plaintiff's suit be dismissed with costs to the defendants. 24. The case proceeded by VIVA VOCE evidence. The three plaintiffs testified as follows: PW1, Boru Guyo, adopted his witness statement dated 8/1/2021 as his evidence-in-chief. 25. He stated in the said statement that in 19th September 2013, he was unlawfully arrested without a warrant by police officers from the Banking Fraud Investigation Unit, following a report of suspected fraudulent activities at the Supreme Court Buildings where he was stationed. 26. After his arrest, he was maliciously detained under degrading conditions for a period exceeding the constitutionally stipulated twenty-four hours, and was only arraigned in court on 23rd September 2013. 27. He was charged in Criminal Case Number 1457 of 2013 at the City Court with the offence of conspiracy to commit a felony contrary to section 393 of the Penal Code, an act he deems malicious because he was charged before the completion of investigations into the alleged offence. 28. The charge alleged that on or before 14th September 2013, at an unknown place within Kenya, jointly with others not before the court, he conspired to commit a felony, namely stealing Kshs. 80,013,302/-, property of the Judiciary of Kenya. 29. Prior to his arraignment, his employer, the Judicial Service Commission, had met on 20th September 2013 and resolved that Judiciary staff arrested in connection with the suspected fraud should not be charged until investigations were concluded and a report submitted; however, the defendants proceeded to charge him despite receiving this communication. 30. He complained in writing to the 1st Defendant about the shoddy investigations carried out by the Banking Fraud Investigations Unit, and the 1st Defendant responded that a comprehensive inquiry would be conducted, but he never received any further communication. 31. Subsequently, on 18th September 2015, two other court files were consolidated with Criminal Case Number 1457 of 2013, and a new charge sheet was presented, again alleging conspiracy to steal Kshs. 80,013,302/-, but notably, the original complainant, Benedict Omollo, was now charged alongside him as a co-conspirator, whereas in the initial charge sheet of 23rd September 2013, Benedict Omollo had been listed as the complainant for the Judiciary. 32. After pleading to the amended charge sheet, the trial was conducted, and he was acquitted of all charges in a judgment delivered on 10th January 2020, having been found not guilty. 33. He contends that his arrest and prosecution were instigated by malice on the part of the defendants, their servants, or agents, because thorough investigations were not conducted, as the police failed to consider that on the alleged date of the conspiracy, he was nowhere near the scene of the crime, and they also ignored the advisory from the Judicial Service Commission. 34. He further claims that his prosecution was selective, as some of his colleagues from the accounting department who were implicated in the alleged fraud were either not charged despite being arrested, or were never arrested at all. 35. Even after investigations progressed and findings exonerated him, the defendants did not withdraw the charges against him. 36. He asserts that the 1st Defendant failed in its statutory duty to ensure that the arresting police officers had carried out proper and complete investigations before having him charged on trumped-up charges that were ultimately dismissed by the trial court. 37. As a result of the malicious prosecution, he suffered monetary loss, having paid his lawyers to defend him in Criminal Case Number 1457 of 2013. 38. PW2, Joab Ooko also adopted his witness statement dated 8/1/2021 as his evidence in- chief. He stated in the said statement that was formerly employed as an accountant at the Judiciary of Kenya. 39. On 19th September 2013, he was unlawfully arrested without a warrant by police officers from the Banking Fraud Investigation Unit, following a report of suspected fraudulent activities in the accounting department of the Judiciary at the Supreme Court Buildings, where he was stationed. 40. After his arrest, he was maliciously detained under degrading conditions for a period exceeding the constitutionally stipulated twenty‑four hours, and he was eventually arraigned in court on 23rd September 2013 on trumped‑up charges in Criminal Case Number 1457 of 2013 at the City Court, for the offence of conspiracy to commit a felony contrary to section 393 of the Penal Code, which alleged that he, jointly with others not before court, conspired to steal Kshs. 80,013,302 belonging to the Judiciary. 41. He notes that his employer, the Judicial Service Commission, had resolved on 20th September 2013 that Judiciary staff arrested in connection with the suspected fraud should not be charged in court until investigations were concluded and a report received, but despite receiving that communication, the defendants proceeded to charge him. 42. He also complained in writing to the 1st defendant about the shoddy investigations carried out by the Banking Fraud Investigations Unit, and the 1st defendant responded that a comprehensive inquiry would be conducted, but he heard nothing further thereafter. 43. Subsequently, on 18th September 2015, two other court files were consolidated with his case, and an amended charge sheet was presented, which now charged the original complainant, Benedict Omollo, alongside him as a co‑conspirator, whereas the first charge sheet had listed Benedict Omollo as the complainant for the Judiciary. 44. After he pleaded to the amended charge sheet, the trial was conducted, and he was acquitted of all charges in a judgment delivered on 10th January 2020, having been found not guilty. 45. He asserts that the arrest was instigated by malice on the part of the defendants, their servants, or agents, because the police officers from the Banking Fraud Investigation Unit failed to conduct thorough investigations and did not consider that he was not present at the office on the date they alleged he conspired to defraud the Judiciary. 46. Further, he contends that his prosecution was selective, as other colleagues from the accounting department who were implicated in the alleged fraud were either arrested but not charged, or were not arrested at all. 47. Even after investigations progressed and the findings exonerated him of any wrongdoing, the defendants did not see fit to withdraw the charges against him. 48. He states that the 1st defendant failed in its statutory duty to confirm that the arresting officers had carried out proper and complete investigations before having him charged on trumped‑up charges that were ultimately dismissed by the trial court. 49. His arrest, unconstitutional detention, and prosecution were, in his view, instigated and perpetuated by malice on the part of the defendants, their servants, or agents. 50. As a result of the malicious prosecution, he suffered monetary loss, having paid his lawyers to defend him in Criminal Case Number 1457 of 2013. 51. He confirms that the evidence given is true and correct, and he requests that his claim be allowed as pleaded. 52. PW3, Benedict Abonyo Omollo, also adopted his witness statement dated 8/1/2021 and a supplementary statement dated 10/5/2022 as his evidence-in-chief. 53. He said in the statement dated 8/1/2021 that he was the former Director of Finance in the Judiciary of Kenya. 54. He recounts in his statement that around 13 September 2013, he became aware of suspected fraudulent activities within the accounts department at the Supreme Court building, where his office was located. 55. As Finance Director, he was frequently consulted by commercial banks on judiciary payments and, upon noticing that certain payments had not been authorized by him or his office, he declined to approve a requested payment and subsequently discovered that further fictitious payments had been made from the judiciary account without his knowledge or approval. 56. He took immediate steps to stop further payments, recover funds already paid out, and lodged complaints with the relevant investigative institutions, including the Banking Fraud Investigation Unit, to have the incident thoroughly investigated and the perpetrators brought to justice. 57. Following preliminary investigations, some judiciary staff attached to the accounts department were arrested on 19 September 2013 and arraigned on 23 September 2013, with Omollo recorded as the complainant on behalf of the judiciary. 58. However, he later learned that he would also be arrested in connection with the fraud, despite having been the one to discover and report it, and he successfully applied for anticipatory bail. 59. On 18 December 2013, he was arraigned in City Court Criminal Case Number 2052 of 2013 on a charge of conspiracy to commit a felony contrary to section 393 of the Penal Code. 60. He noted that prior to his arraignment, he attended a Judicial Service Commission meeting on 20 September 2013, where the Commission resolved that arrested judiciary staff should not be charged until investigations were concluded and a report received, but the defendants ignored this communication and proceeded to charge and prosecute him without completing investigations. 61. Subsequently, two other files, CMCC No. 1447 of 2013 and CMCC No. 1457 of 2013, were consolidated with his case, with the latter as the lead file, and a new charge sheet dated 18 September 2015 was presented, alleging that on or before 13 September 2013, at an unknown place in Kenya, jointly with others, he conspired to steal Kshs. 80,013,302 belonging to the Judiciary of Kenya. 62. A trial was conducted, and by a judgment delivered on 10 January 2020, he was acquitted and found not guilty. 63. He asserts that his prosecution was actuated by malice on the part of the defendants, their servants, or agents, as it was initiated before thorough investigations and in defiance of the Judicial Service Commission’s recommendation to defer charges. 64. After his arraignment, he obtained a court order to access the judiciary computers used in the fraud and commissioned a forensic audit by Vivium Consultants, whose report was shared with the defendants and the Judiciary in compliance with the Public Finance Management Act. 65. Further investigations by the Cyber Crime Unit of the National Police Service, acting as agents of the 2nd defendant, produced findings similar to those of Vivium Consultants, indicating that the accounts department computers had been hacked, and both reports exonerated him of any wrongdoing; yet the defendants did not withdraw the charges. 66. He contends that the prosecution was selective, as charges were only leveled against certain judiciary staff and suppliers, despite preliminary and forensic reports indicating that other staff members’ passwords were used and some suppliers had received part of the fraudulent funds. 67. He further states that the defendants failed to charge a judiciary staff member who had confessed to involvement in the fraud, even after the Chief Justice had communicated that confession to them. 68. As a consequence of what he describes as trumped-up and uninvestigated charges, he was interdicted and subsequently terminated from employment, suffered social ostracism from colleagues and peers, lost other job opportunities, and found it extremely difficult to secure employment for over five years due to the criminal prosecution that lasted seven years. 69. He claims to have endured mental anguish, loss of reputation and esteem, loss of earnings, and other damages, which he now seeks for malicious prosecution. 70. He also avers that his arrest, unconstitutional detention, and prosecution were instigated and perpetuated by malice on the part of the defendants, their servants, or agents. 71. He further claims monetary loss as a result of the malicious prosecution, namely the legal fees he paid to his lawyers in defending Criminal Case Number 1457 of 2013. 72. He confirms that his evidence is true and correct, and he requests that the claim be allowed as prayed. 73. The defendants called one witness NO.231979 Assistant Superintendent of Police, Michael Kirwa Melly who testified as DW1. 74. DW1 said in his statement that at the material time in 2013, he was attached to the Directorate of Criminal Investigations at the Operations Directorate and that he was based at the Banking Fraud Investigation Unit in Nairobi. 75. On 17th September 2013, he received a call from Joel Kamatu Kiarie of CFC Stanbic Bank’s Financial Crime Control Department, who reported that two suspects had been arrested at the bank’s Kenyatta Avenue Branch and taken to Central Police Station for collection by his unit the next day. 76. On 18th September 2013, he instructed PC Haji Lumumba to collect the prisoners, but Lumumba found only one suspect, Achoka Henry Joseph, as the other, Fredrick Mueni Tsofa, had been released on cash bail; Lumumba brought Achoka to the office, and investigations commenced by recording statements from bank staff. 77. Stephen Maina informed them that a suspect had attempted fraudulent transactions at the branch, and teller Erick Ocharo had flagged account number 01000002407307 in the name of Henry Achoka Joseph for suspected fraud. 78. From the branch, they obtained a copy of a Notification of Payment dated 13th September 2013, Payment Voucher No. 8657, and an invoice from Bonarza Agencies. 79. On 19th September 2013, they charged Henry Achoka Joseph at Milimani Court and then proceeded to the Judiciary to trace the source of the money, where they met Chief Registrar Gladys Boss Shollei, Director of Finance Benedict Omollo, Director of Revenue Wycliffe Wanga Obunde, and Deputy Chief Registrar Kakai. 80. Benedict Omollo recorded a statement and confirmed that the Notification of Payment and Payment Voucher did not originate from the Judiciary’s office, and that the payment to Bonarza came from Judiciary deposit account No. 100182342 at the Central Bank. 81. From this single transaction, other fraudulent transactions were discovered from the Judiciary recurrent account No. 1000181915, namely Spoofer Innovations receiving Kshs. 1,250,000 and Fintax Consultants receiving Kshs. 6,490,250, totalling Kshs. 7,740,250. from the Judiciary deposit account No. 100182342. 82. Further fraudulent payments were made to Perfectors Tent and Events (Kshs. 3,720,500), Parok Enterprises (Kshs. 2,411,210), Jepco Cleaning Services (Kshs. 5,719,466), Spoofer Innovations (Kshs. 890,210), Bonarza Agencies (Kshs. 12,000,000), Meerkats Kenya Ltd (Kshs. 6,661,790). 83. Further, Integrated Real Estate (three payments of Kshs. 7,590,000, Kshs. 5,730,150, and Kshs. 7,200,300), Fintax Consultants (two payments of Kshs. 5,590,000 and Kshs. 4,370,436), Colldax Agencies (Kshs. 2,853,148), Exigent Agencies (Kshs. 3,625,120), and William Logistics (Kshs. 3,910,722). 84. To determine how these merchants were defined in the Integrated Financial Management Information System (IFMIS), they went to the Treasury and obtained a letter referenced CSO/GEN/VOL.1 dated 28th August 2013, signed by procurement officer Edwin Makokha. 85. On 25th September 2013, he took specimen signatures of Makokha and submitted them with the letter to the document examiner, and the report confirmed the letter was forged and did not originate from the procurement officer. 86. They requested an IFMIS audit trail report, which identified that Ruth Wanjiku Muraya defined the fraudulent merchants in the ledger system, entered data, and validated payment processing. 87. Further, that Joab Ooko updated the processing of invoices and created others and Mole Boru Guyo created and updated the processing of fraudulent invoices; and Benjamin Nzioka defined fraudulent suppliers in IFMIS and updated their status. 88. They also obtained a G-Pay (Government Payment Solutions) audit trail from the Central Bank for the period 9th to 19th September 2013, which showed that those responsible for the fraudulent transactions included Benjamin, Macharia, B Omollo, and Ruth Muraya. 89. Based on the IFMIS report, they charged four Judiciary staff members, and based on the G-Pay report, they charged additional Judiciary staff. 90. He further stated that he obtained warrants to investigate the fraudulent accounts vide an application dated 20th September 2013 and secured documents relating to seven merchants, leading to the arrest of the directors of those companies, who were then charged jointly with the Judiciary staff. 91. The parties filed written submissions as follows; The plaintiffs (Joab Ooko, Benedict Abonyo Omollo, and Boru Guyo Mole) submitted that they filed this suit against the Director of Public Prosecutions and the Honourable Attorney General, following their arrest on 19th September 2013 and arraignment on 23rd September 2013 in Nairobi Magistrate’s Court Criminal Case Number 1457 of 2013, where they were charged with conspiracy to commit a felony. 92. The plaintiffs contend that their constitutional rights were violated, and they were subjected to a malicious and spiteful prosecution that lasted eight years, causing serious emotional, psychological, financial, and reputational damage. 93. Three separate suits (HCCC E005, E006, and E007 of 2021) were consolidated for the purpose of taking evidence. 94. The first plaintiff testified that he was arrested on a Thursday but not brought to court until the following Monday, exceeding the constitutionally mandated 24-hour limit. He stated the Judicial Service Commission resolved on 20th September 2013 that staff should not be charged until investigations were complete, but this was ignored. He provided an alibi (being in Isiolo on the date of the fraud), which the investigating officer later confirmed. 95. The first and second plaintiffs, with co-accused, wrote to the DPP on 28th September 2013 complaining of shoddy investigations and suggesting hacking of judiciary computers. 96. Two forensic audits (one by Vivium Consulting and another by the Directorate of Criminal Investigations) confirmed the judiciary computers were hacked and their credentials harvested, yet the prosecution continued and even amended the charge sheet in 2015. 97. On 10th January 2020, the criminal court acquitted the plaintiffs, noting the first plaintiff was in Isiolo when the theft occurred. 98. The second plaintiff, also a judiciary accountant, corroborated the account, stating he was at a university class on the night of the fraud and gave similar evidence of premature arrest, ignored JSC recommendations, and prosecution failure to withdraw charges despite forensic evidence clearing him. 99. The third plaintiff, the Director of Finance at the Judiciary, testified he was the whistleblower who discovered the fictitious payments but was also charged. He commissioned a forensic audit confirming a malware harvested user credentials. The DCI’s own audit confirmed this. Despite his exculpatory evidence and role in recovering public funds, the prosecution persisted. 100. The defendants’ sole witness, Chief Inspector Michael Kirwa Melly (the investigating officer), confirmed the arrest and arraignment dates. He could not provide a cogent explanation for the delay in bringing the plaintiffs to court. 101. DW-1 conceded the decision to charge on 23rd September was premature, as investigations were incomplete. He admitted a key G-Pay report was only received on 27th September 2013, five days after the charges were filed. 102. DW-1 confirmed a forensic audit report was received in June 2015, nearly two years after charges were filed. He acknowledged receiving the JSC’s recommendation not to charge but ignored it. 103. DW-1 admitted other judiciary staff whose credentials were used in the fraud (e.g., Grace Macharia, Wyclif Wanga, Kamao J.) were never charged, and he could not provide a lawful reason for this. 104. DW-1 conceded the plaintiffs’ alibis were confirmed, and the third plaintiff was instrumental in stopping the fraud. He stated he wrote a confidential letter to the ODPP but did not disclose its contents. 105. The plaintiffs further submitted that issues for determination were: (i) unlawful detention; (ii) whether criminal proceedings were instituted by the defendants; (iii) malice; (iv) termination in plaintiffs’ favour; (v) liability and damages; (vi) costs. 106. On unlawful detention, the plaintiffs argued the four-day detention violated Article 49(1)(f) of the Constitution, which requires arraignment within 24 hours. This was not disputed by the defendants. 107. On malicious prosecution, the plaintiffs relied on **Mbowa vs. East Mengo District Administration [1972] EA 352**, which sets out the four essential ingredients: (a) defendant instituted proceedings; (b) without reasonable and probable cause; (c) maliciously; (d) proceedings terminated in plaintiff’s favour. 108. The plaintiffs submitted there was no reasonable and probable cause to charge them, citing **Kagane vs. Attorney General (1969) EA 643,** which defines reasonable and probable cause as an honest belief in guilt based on reasonable grounds. 109. The plaintiffs argued the prosecution’s decision to continue despite exculpatory evidence (forensic audits confirming hacking and alibis) was malicious, relying on Samuel Kiprono Chepkonga v Kenya Anti-Corruption Commission & another 2014 KEHC 8554 (KLR), where Justice Odunga held that insistence on prosecution with insufficient evidence is evidence of malice. 110. The plaintiffs also cited the case of **James Karuga Kiira -vs- Joseph Mwamburi and 3 Others, Nairobi C.A No. 171 of 2000,** which held that prosecuting dishonestly or unreasonably is tortious, with the burden on the person prosecuted to prove the prosecutor did not act honestly or reasonably. 111. Termination in the plaintiffs’ favour was established by their acquittal on 10th January 2020. 112. For unlawful detention, the plaintiffs cited awards as follows; 113. ***Wachira Weheire V Attorney-General [2010] KEHC 4127 (KLR)*** *where Kshs. 2.5 million was awarded.* 114. ***Akusala A. Borniface v OCS Langata Police Station & 4 others [2018] KEHC 9626 (KLR****) where**Kshs. 2 million was awarded.* 115. ***Lucas Omoto Wamari v Attorney General & another [2014] KEHC 6185 (KLR)*** *where Kshs. 2 million was upheld.* 116. They submitted Kshs. 2.5 million would be appropriate compensation for unlawful detention. 117. For malicious prosecution, the plaintiffs cited the following cases; 118. ***Samuel Kiprono Chepkonga v Kenya Anti-Corruption Commission & another 2014 KEHC 8554 (KLR)*** *where Kshs. 5 million was awarded.* 119. ***Bobby Macharia v Attorney General & 3 others 2018 KEHC 9492 (KLR)*** *where Kshs. 5.6 million plus Kshs. 800,000 were awarded for aggravated damages.* 120. ***Michael Kagoma Maina V Attorney General 2012 KEHC 5449 (KLR)*** *where Kshs. 6 million for an eight-year prosecution was awarded.* 121. ***Geoffrey Asanyo & 3 Others v AG [2012] eKLR****where Kshs. 10 million for a trial over six years was awarded.* 122. The plaintiffs submitted that Kshs. 6 million would be sufficient compensation for the damage caused by the eight-year prosecution. 123. The first plaintiff proved special damages of Kshs. 355,450 in legal fees and expenses, supported by documentary evidence (exhibits 9 and 10 at pages 564–583 of the bundle) which was not objected to. 124. The plaintiffs concluded they had demonstrated both unlawful detention and malicious prosecution, entitling them to compensation and costs, and asked the court to grant the prayers sought in their plaints. 125. The defendants, being the Director of Public Prosecutions and the Attorney General, have submitted in opposition to the plaintiffs' claim for malicious prosecution arising from their arrest and prosecution on charges of conspiracy to commit a felony and stealing involving over 80 million Kenyan shillings from the Judiciary's accounts. 126. The plaintiffs were staff of the Judiciary's finance department in 2013, and their login credentials were demonstrably used in a string of fraudulent transactions, as evidenced by IFMIS and G-Pay audit trails, which showed that the accounts of Boru Guyo Mole, Joab Ooko, and Benedict Abonyo Omollo were actively used to create, modify, and approve payments to fictitious suppliers. 127. The Banking Fraud Investigation Unit, acting on a complaint from the Chief Registrar of the Judiciary and after meeting with the Chief Justice, conducted extensive investigations, recorded statements from 25 witnesses, and obtained warrants to examine bank accounts, leading to the arrest of the plaintiffs based on concrete evidence rather than bare suspicion. 128. The Judiciary was able to recover 60 million of the stolen funds due to the investigators' swift action, and the defendants contend that the prosecution was instituted with reasonable and probable cause because the investigators had credible grounds to believe the plaintiffs were involved. 129. The defendants argue that the fact that a subsequent forensic cybercrime report suggested the plaintiffs' accounts may have been hacked does not retrospectively render the prosecution malicious, as the decision to prosecute must be assessed on the information available at the time, not on later exculpatory findings. 130. In addressing the legal elements of malicious prosecution, the defendants rely on the conjunctive test set out in cases such as **Murunga v The Attorney General (1976-1980) KLR 1251 and Attorney General v Peter Kirimi Mbogo & Another, Meru Civil Appeal 52 & 56 of 2020 (Consolidated) [2021] eKLR.** 131. The defendants argue that while the first two elements, that a prosecution was instituted and terminated in the plaintiffs' favour, are not in dispute, the plaintiffs have failed to prove the third and fourth elements, namely that the prosecution was without reasonable and probable cause and was actuated by malice. 132. On reasonable and probable cause, the defendants cite the definition from **Hicks v Faulkner (1878) 8 Q.B.D 167 and Kagane v Attorney General (1969) EA 643,** emphasizing that the test is whether an ordinarily prudent and cautious person, placed in the prosecutor's position, would have believed the accused was probably guilty based on the totality of the material available at the time. 133. The defendants submit that the plaintiffs' own admission that their login credentials were used, combined with the transaction trails, clearly met this standard, and there was therefore reasonable and probable cause for the prosecution. 134. On malice, the defendants argue that there is no evidence of spite, ill will, or improper motive, as the investigators did not know the plaintiffs personally, the complaint was made by the Judiciary in response to a genuine fraud, and the DPP independently decided to prosecute in the public interest. 135. The defendants rely on Gitau v Attorney General (1990) KLR 13, which held that setting the law in motion requires active and instrumental involvement in causing judicial action and that a complainant who makes a report to police should not be blamed if the police subsequently prosecute, provided there were reasonable grounds. 136. The defendants further rely on **Barclays Bank (K) Ltd v Ojwang & 2 others (2022) KEHC 15489 (KLR),** which held that an acquittal alone does not ground a suit for malicious prosecution and that evidence of spite or ill will must be established. 137. The defendants also cited **Kenya Power & Lighting Co. Ltd v Onserio & 3 others (2025) KEHC 3833 (KLR)**, where no malice was found where the report was plausible and reasonable, and **National Oil Corporation v John Mwangi Kaguenu & 2 others (2019) KECA 884 (KLR),** which found no malice where a fraud investigation followed an audit report. 138. The defendants refer to **Ndirangu v Equity Bank Limited & another (2023) KEHC 23676 (KLR) and Kamau v Bank of India & another (2023) KEHC 22988 (KLR)**, both of which held that reasonable cause existed where the plaintiff's name appeared on questioned documents and that malice cannot be imputed when a crime was actually committed and the complainant did not target a specific individual. 139. The defendants also rely on **Wanjala v Kenya Commercial Bank Limited & another (2026) KEHC 1051 (KLR),** where the court dismissed a malicious prosecution claim despite the plaintiff's acquittal, holding that shoddy investigations or erroneous findings alone do not prove malice and that the plaintiff must establish spite, ill will, or improper motive, which was not done. 140. The defendants conclude that the prosecution was a bona fide exercise of criminal law in the public interest, driven by the need to vindicate justice after a massive fraud, and that the later discovery of possible hacking merely provides an exculpatory defence in the criminal trial but does not transform the prosecution into a malicious one. 141. The defendants further contend that the DPP's independent constitutional mandate under Article 157 of the Constitution breaks any direct chain of liability, and that the plaintiffs have not proved special damages, as no revenue stamps were affixed to their claims. 142. The defendants urge the court to dismiss the suit with costs, citing **Risper Nyomenda v George Martin Kenyatta (2021) eKLR** for the proposition that an award of damages, should any be granted, should be modest, and **Bonham-Carter v Hyde Park Hotel Ltd (1948) 64 TLR 177**, which places the burden of proving damage squarely on the plaintiff. 143. The defendants therefore pray that the suit be dismissed, as the plaintiffs have failed to establish all the necessary elements of malicious prosecution on a balance of probabilities. 144. I have carefully considered the evidence adduced in this case together with the rival submissions filed by both parties. It is the duty of the plaintiffs to prove their case to the required standard in civil cases which is on a balance of probabilities. 145. The three consolidated suits before this court arise from the arrest and subsequent prosecution of the plaintiffs, who were employees of the Judiciary of Kenya, on charges of conspiracy to steal public funds. 146. The plaintiffs, Boru Guyo Mole, Joab Ooko, and Benedict Abonyo Omollo, each filed similar claims against the Director of Public Prosecutions (DPP) and the Attorney General (AG), seeking general damages for malicious prosecution and unlawful arrest and detention, exemplary damages, special damages, and costs. 147. The defendants denied liability, asserting that the prosecution was instituted with reasonable and probable cause and without malice. 148. The issues for determination in this case are as follows; 149. ***Whether the plaintiffs have proved the essential elements of the tort of malicious prosecution,*** 150. ***Whether their arrest and detention were unlawful, and*** 151. ***Whether they are entitled to the damages sought.*** 152. The tort of malicious prosecution is well-established in Kenyan law. To succeed, a claimant must prove four essential elements as follows; 153. ***That the defendant instituted the prosecution;*** 154. ***That the prosecution terminated in the claimant’s favour;*** 155. ***That the prosecution was instituted without reasonable and probable cause; and*** 156. ***That it was actuated by malice***. 157. As stated in the persuasive authority of **Mbowa v East Mengo District Administration (supra)**, these four requirements must “unite” to create a cause of action. 158. The Court of Appeal in **Murunga v Attorney General (supra),** has affirmed these principles. 159. It is not in dispute that the defendants, through the police and the DPP, instituted criminal proceedings against the plaintiffs in Criminal Case Number 1457 of 2013 at the City Court. 160. It is also not in dispute that these proceedings terminated in the plaintiffs’ favour, as each was acquitted of all charges on 10th January 2020. 161. The dispute, therefore, centers on the latter two elements as to whether the prosecution was instituted without reasonable and probable cause and whether it was actuated by malice. 162. The legal test for reasonable and probable cause was definitively stated by Hawkins J. in **Hicks v Faulkner (supra),** as approved in **Kagane v Attorney General (supra).** 163. It is an honest belief in the guilt of the accused, based upon a full conviction, founded on reasonable grounds, of the existence of circumstances which would reasonably lead an ordinarily prudent and cautious man, placed in the position of the accuser, to the conclusion that the person charged was probably guilty. 164. The assessment must be based on the totality of the material available to the prosecutor at the time the decision to prosecute was made, not on subsequent exculpatory findings. 165. In the present case, the investigating officer, DW1 Michael Kirwa Melly, conceded in his testimony that the decision to charge the plaintiffs on 23rd September 2013 was premature. 166. He admitted that investigations were incomplete and that a crucial G-Pay report from the Central Bank, which would have provided a clearer picture of the fraudulent transactions, was only received on 27th September 2013, five days after the charges were filed. 167. More critically, the court notes that the plaintiffs had been arrested on 19th September 2013. Prior to their arraignment, their employer, the Judicial Service Commission, had explicitly resolved on 20th September 2013 that no arrested staff should be charged until investigations were concluded and a report received. 168. The defendants ignored this communication and, in the circumstances, this court finds that the decision to prosecute was not based on a full conviction founded on reasonable grounds, but rather was taken in haste, before the necessary investigative reports were available. 169. While the audit trails initially pointed to the plaintiffs’ login credentials being used, the subsequent forensic audits by Vivium Consultants and the DCI’s own Cyber Crime Unit, both of which confirmed that the Judiciary’s computers had been hacked and user credentials harvested, strongly indicate that the initial premise for the prosecution was flawed. 170. The investigation was, in the court’s view, shoddy and incomplete. The prosecution proceeded, and even continued after significant exculpatory evidence emerged, demonstrating a failure to act with the requisite caution and prudence. 171. This persistence in the face of evidence that undermined the basis for the charge is a strong indicator of a lack of reasonable and probable cause. 172. As the court observed in **Samuel Kiprono Chepkonga v Kenya Anti-Corruption Commission & another(supra)**, insistence on prosecution with insufficient evidence is evidence of malice. 173. Malice, in the context of malicious prosecution, means the prosecution was motivated by something other than a genuine desire to vindicate justice. 174. It could be spite, ill-will, or an improper purpose. While the court does not find evidence of personal vendetta, malice can be inferred from a lack of reasonable and probable cause and other circumstances. 175. The investigating officer’s admission that the plaintiffs were charged prematurely, the selective prosecution where other implicated staff were not charged despite their credentials being used, and the failure to withdraw charges even after exculpatory forensic reports were received, all point to an improper motive. 176. The prosecution acted unreasonably and despite clear evidence that exonerated the plaintiffs. 177. This falls short of the standard expected of a prosecutor and constitutes malice. The defendants cannot hide behind the DPP’s constitutional independence when the prosecution was initiated and perpetuated based on incomplete and subsequently discredited investigations by their agents. 178. The investigating officer was part of the state apparatus, and his actions are attributable to the defendants. 179. Consequently, the court finds that the plaintiffs have established all four elements of malicious prosecution on a balance of probabilities. 180. Furthermore, the plaintiffs’ detention for over 24 hours before being arraigned was a clear violation of their rights under Article 49(1)(f) of the Constitution. 181. This unlawful detention, which the defendants did not adequately justify, is a separate and distinct tort. 182. False imprisonment and malicious prosecution are separate causes of action, and a plaintiff may succeed on one and fail on the other. 183. On the question of quantum, the court has considered the awards in similar cases. The plaintiffs were subjected to a prolonged prosecution lasting eight years, which caused them immense mental anguish, loss of reputation, and financial hardship. 184. They were interdicted from their employment and suffered social ostracism. For the unlawful detention, an award of Kshs. 2,500,000 is deemed appropriate, in line with the submissions by the plaintiffs and awards in cases such as **Wachira Weheire v Attorney-General(supra) and Lucas Omoto Wamari v Attorney General & another (supra**). 185. For the malicious prosecution, this court awards each plaintiff Kshs. 2,000,000 in general damages for malicious prosecution. 186. The plaintiffs also claimed exemplary damages. However, the court finds that the awards for unlawful detention and malicious prosecution are sufficient to compensate them for the violations suffered, and the circumstances do not warrant an additional award of exemplary damages. 187. The first plaintiff, Boru Guyo Mole, proved special damages of Kshs. 355,450 in legal fees and transport expenses, supported by documentary evidence. 188. The court has not been shown sufficient documentary proof of special damages for the other plaintiffs. 189. It is trite law that special damages must be specifically pleaded and strictly proved. In the absence of such proof, only the first plaintiff’s claim for special damages succeeds. 190. In conclusion, judgment is hereby entered in favour of the plaintiffs against the defendants jointly and severally as follows; 191. ***A declaration be and is hereby issued that the plaintiffs' prosecution in Criminal Case Number 1457 of 2013 was malicious.*** 192. ***A declaration be and is hereby issued that the plaintiffs' arrest and detention were unlawful and violated their constitutional rights.*** 193. ***The first plaintiff, Boru Guyo Mole, is awarded Kshs. 2,500,000 for unlawful arrest and detention, Kshs. 2,000,000 for malicious prosecution, and Kshs. 355,450 as special damages.*** 194. ***The second plaintiff, Joab Ooko, is awarded Kshs. 2,500,000 for unlawful arrest and detention and Kshs. 2,000,000 for malicious prosecution.*** 195. ***The third plaintiff, Benedict Abonyo Omollo, is awarded Kshs. 2,500,000 for unlawful arrest and detention and Kshs. 2,000,000 for malicious prosecution.*** 196. The awards in respect of general damages shall attract interest at court rates from the date of this judgment until full payment and in respect of special damages from the date of filing of the amended plaint by the first plaintiff that introduced the special damages (10/5/2022). 197. However, since the defendants are government agencies, each party to bear its own costs of this suit. 198. Orders to issue accordingly. **DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 25TH DAY OF JUNE, 2026.**  **………….…………….** 1. **N. ONGERI** **JUDGE** **In the presence of:** Mr Ambala for the Plaintiff Miss Mutsoli for the Defendants Chrispin – Court Assistant