https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1144

Odaba v Commissioner General, Kenya Revenue Authority & another (Civil Appeal E055 of 2020) [2026] KECA 1144 (KLR) (12 June 2026) (Judgment) Neutral citation: [2026] KECA 1144 (KLR) Republic of Kenya In the Court of Appeal at Kisumu Civil Appeal E055 of 2020 MS Asike-Makhandia, HA Omondi & LK Kimaru, JJA June 12, 2026 Between Dickson Ojiambo Odaba Appellant and The Commissioner General, Kenya Revenue Authority 1st Respondent The Attorney General 2nd Respondent (Being an appeal from the Judgment of the High Court of Kenya at Busia (W. Kiarie J.) dated 18th December, 2019 in Civil Appeal No. 9 of 2018 Civil Appeal 9 of 2018 ) Judgment 1.A brief background of this appeal is that the appellant lodged a suit against the respondents before the Principal Magistrate’s Court at Busia, by an amended plaint dated 17th July, 2012, seeking damages for alleged wrongful detention and malicious prosecution. It was the appellant’s case that on 7th October, 2006, while carrying on with his business at Busia, he was unlawfully arrested by the 1st respondent on allegations of stealing property of the 1st respondent, being official receipts, and detained in police custody for five days. He averred that the 2nd respondent subsequently arraigned him before the court in Kisumu Chief Magistrate Criminal Case No. 848 of 2006, where he was charged with the following: Count I: Stealing goods in transit contrary to Section 279(c) of the Penal Code; Count II: Making a document without authority contrary to Section 357(a) of the Penal Code; Count III: Forgery contrary to Section 349 of the Penal Code; Count IV: Uttering a document with intent to defraud contrary to Section 357(b) of the Penal Code; Count IV: Obtaining by false pretences contrary to Section 313 of the Penal Code; and, an alternative charge of handling stolen goods contrary to Section 322(2) of the Penal Code. 2.The appellant further contended that after trial, he was acquitted pursuant to Section 215 of the Criminal Procedure Code. He maintained that his illegal arrest and prosecution were actuated by malice, occasioning him mental anguish and financial loss, for which he sought compensation in form of general damages. He also prayed for special damages of sum Kshs.40,000/=, being legal fees he allegedly incurred in defending the criminal charges. 3.In response, the 1st respondent filed a statement of defence dated 26th June, 2009. The 1st respondent averred that the appellant was arrested on suspicion of handling stolen goods belonging to the 1st respondent, which offence is provided for under the Penal Code. The 1st respondent denied any malice on their part and put the appellant to strict proof thereof. 4.The case was heard by viva voce evidence. The appellant testified as PW1. He reiterated the averments made in his pleadings. He testified that he was arrested by Kenya Revenue Authority (KRA) officers on 7th October, 2006, at the customs yard gate, and taken to Busia Police Station. He was alleged to have been found in possession of stolen KRA receipts. Upon being charged and tried before the trial court, he was acquitted as the charges were not proved. 5.DW1, Daniel Kamwanga, testified that at the material time, he was employed by the KRA as a manager at the Customs and Excise Department in Busia. He stated that while at work at the Busia Office, two receipt books, containing fifty leaflets of receipts each, were reported missing on 8th December, 2003, while on transit from Kisumu to Busia. He testified that he notified the Regional Manager in Kisumu, following which a public alert was issued through the print media on 11th December, 2003 warning that any use of the missing receipts was unauthorized, and that any taxes purportedly collected using the said receipts would not be recognized and would remain unaccounted for. 6.DW1 further testified that one of the missing receipts was subsequently found in the appellant’s possession, leading to the appellant being charged in Criminal Case No. 848 of 2006. He stated that one of the witnesses in the criminal case, namely Charles Okoth, testified that the recovered receipt had been issued to him by the appellant, who had presented himself as a customs cashier for the purposes of a payment related to clearance of a cabin imported from Uganda. 7.After considering the matter on its merits, the trial court, in a judgment dated 31st August, 2018, dismissed the appellant’s suit for lack of merit. The learned magistrate determined that the appellant’s arrest and prosecution was not malicious, as it was based on a report made to the police by the 1st respondent, which report was not false. The learned magistrate found that the appellant’s prosecution was founded on the testimony of two witnesses in CMC Criminal Case No. 848 of 2006, who had positively identified the appellant as the person who had issued them with the missing receipts, thereby establishing that there existed reasonable and probable cause for the prosecution. The appellant’s claim against the 2nd respondent was dismissed for being statute barred, as it was lodged after twelve months from the date the cause of action arose. 8.Aggrieved by this decision, the appellant lodged an appeal before the High Court at Busia premised upon four grounds contained in his memorandum of appeal. In summary, the appellant faulted the learned magistrate: for failing to properly evaluate the evidence on record; for dismissing his claim for false imprisonment which had been sufficiently proved; for determining that his claim for false imprisonment was time barred; and for failing to consider the elements of malicious prosecution. 9.In a judgment delivered on 18th December, 2019, the learned first appellant Judge affirmed the trial court’s finding that the appellant’s arrest was founded on genuine complaint of possible criminal activity that had been linked to him, and that the respondents had legal justification to arrest and prosecute him. 10.The appellant, being dissatisfied with the decision of the first appellate court, lodged this second appeal. In his memorandum of appeal dated 27th September, 2020, the appellant faulted the learned Judge for:i.Finding in favour of the respondents notwithstanding the overwhelming evidence that his arrest and prosecution were malicious and instituted without reasonable or probable cause;ii.Failing to properly consider the appellant’s evidence and submissions placed before the court;iii.Exonerating the respondents from liability despite the appellant’s contention that the charges were preferred against him without proper verification of his identity;iv.Failing to properly analyze the evidence and consequently arriving at the conclusion that the ingredients of the tort of malicious prosecution had not been proved on a balance of probabilities;v.Taking into account extraneous and irrelevant matters in determining the dispute;vi.Finding that he was procedurally prosecuted in the criminal proceedings and was found not guilty;vii.Finding that he had failed to prove his case on a balance of probabilities; and,viii.For rendering a judgment that caused a miscarriage of justice and infringed upon the appellant’s constitutional right to enjoy protection of the law. 11.The appeal was canvased by way of written submissions. The firm of Marie Ogolla & Associates was on record for the appellant. The appellant submitted that both the trial court and the first appellate court erred in dismissing his claim for false arrest, unlawful detention, and malicious prosecution despite the evidence on record allegedly demonstrating that the respondents acted without reasonable or probable cause. 12.On false and unlawful arrest, the appellant argued that the respondents arrested him solely on the uncorroborated allegations of one John Ayoki, who was himself the person found with the impugned receipt, and whose name appeared on it. The appellant asserted that the police failed to conduct proper investigations before arresting and charging him, and instead relied on hearsay evidence and dock identification. He maintained that none of the prosecution witnesses knew or identified him before they allegedly encountered him in police custody, and that no identification parade was conducted to ascertain his identity. According to the appellant, the evidence available at the time of arrest could not objectively sustain reasonable suspicion or justify prosecution. 13.The appellant further submitted that his constitutional rights were violated because he was arrested without being informed of the reasons for his arrest, denied an opportunity to communicate with his advocate or family members, and detained in police custody for five days before being taken to court. He argued that his detention contravened constitutional safeguards requiring an arrested person to be presented before court within twenty-four hours and thus rendered the arrest unlawful in its entirety. 14.On malicious prosecution, the appellant submitted that the respondents acted maliciously and abused the prosecutorial process by prosecuting him despite allegedly there being lack of credible evidence linking him to the offence. He argued that the real suspect was John Ayoki, who disappeared after implicating him, yet the respondents failed to investigate or prosecute him. The appellant maintained that the prosecution witnesses were coached, that the respondents knowingly relied on weak and contradictory evidence, and that the prosecution proceeded despite the absence of a realistic prospect of conviction. He further submitted that the respondents failed to conduct thorough investigations, ignored material inconsistencies in the evidence, and improperly shifted focus from the actual suspect to the appellant. 15.The appellant further faulted the learned first appellate Judge for allegedly failing to properly re-evaluate and analyze the evidence as required of a first appellate court. He argued that the Judge failed to consider his evidence and submissions, failed to interrogate the issue of identification, and instead relied on extraneous matters and speculative reasoning. In particular, the appellant took issue with the Judge’s observation that he was “lucky” the prosecution had not appealed the acquittal, arguing that the Judge improperly treated the matter as though he were reconsidering the criminal case rather than determining a civil claim for malicious prosecution. 16.The appellant’s supplementary submissions largely reiterated the appellant’s earlier arguments but added emphasis on the alleged violation of his rights to liberty, dignity, fair process, and protection from arbitrary arrest and detention. Further, the appellant argued that the respondents acted recklessly and with improper motive by proceeding with prosecution despite alleged contradictory evidence, including the document examiner’s findings that the receipt stamp impressions differed from official KRA stamps. He submitted that the prosecution was pursued dishonestly and unreasonably, thereby amounting to an abuse of prosecutorial discretion. 17.Finally, the appellant submitted that he had proved his claim on a balance of probabilities and that the dismissal of his suit amounted to a miscarriage of justice and a violation of his constitutional right to equal protection of the law. He therefore urged this Court to set aside the judgment of the High Court and allow the appeal with costs. 18.The respondents did not participate in this appeal despite being served. 19.This being a second appeal, our duty was well stated in Kenya Breweries Ltd v Godfrey Odoyo [2010] eKLR, where this Courtheld:“In a second appeal however, such as this one before us, we have to resist the temptation of delving into matters of facts. This Court, on second appeal, confines itself to matters of law unless it is shown that the two courts below considered matters they should not have considered or failed to consider matters they should have considered or looking at the entire decision, it is perverse. In the case of Stephen Muriungi and another vs. Republic (1982-88) 1 KAR 360, Chesoni Acting JA (as he then was) said at page 366:“We would agree with the view expressed in the English case of Martin vs Glywed Distributors Ltd (t/a MBS Fastenings) [1983] ICR 511 that where a right of appeal is confined to questions of law only, an appellate court has loyalty to accept the findings of fact of the lower court(s) and resist the temptation to treat findings of fact as holdings of law or mix findings of fact and law, and, it should not interfere with the decisions of the trial or first appellate court unless it is apparent that, on the evidence, no reasonable tribunal could have reached that conclusion, which would be the same as holding the decision is bad in law.” 20.The appellant’s appeal turns on whether the learned Judge erred in law in affirming the trial court’s finding that the appellant had failed to prove the claims of false arrest, unlawful detention, and malicious prosecution against the respondents. 21.On the claim for false imprisonment and unlawful detention, the appellant contended that he was arrested and detained without reasonable cause, and that the respondents failed to conduct proper investigations prior to his arrest. What amounts to “reasonable and probable cause” was explained in Kagame & Others v. AG & Another [1969] EA 643 as follows;“Reasonable and probable cause is an honest belief in the guilt of the accused based upon a full conviction founded upon reasonable grounds of the existence of a state of circumstances, which assuming them to be true, would reasonably lead an ordinary prudent and cautious man placed in the position of the accuser to the conclusion that the person charged was probably guilty of the crime imputed...” 22.In this case, the material placed before the investigators disclosed that two KRA receipt booklets had been reported missing and a public notice issued warning members of the public against use of the said receipts. Subsequently, one of the missing receipts resurfaced during clearance of a cabin imported from Uganda. PW2 and PW4, in the criminal proceedings identified the appellant as the person who facilitated the clearance process and issued them with a receipt from one of the missing booklets. In the circumstances, we cannot fault the two courts below for finding that the respondents had probable and reasonable cause to suspect the appellant’s involvement in the offences under investigation and to effect his arrest. The fact that the prosecution ultimately failed does not retrospectively render the reasons that informed the appellant’s arrest unlawful. 23.Turning to the tort of malicious prosecution, it is well settled that a claimant must establish that: the prosecution was instituted by the defendant; that the prosecution terminated in the claimant’s favour; that the prosecution was instituted without reasonable and probable cause; and that it was actuated by malice. A claimant is required to satisfy all four ingredients, and failure to establish any one of these ingredients is fatal to the claim. This was the holding of this Court in John Nganga Kinuu & 2 others v Peter Rubiro Ndongi & 4 others [2020] KECA 711 (KLR) where the Court stated thus:“The position in law as stated and restated by the case law highlighted above is that, in order to succeed on a claim for malicious prosecution, a party has to satisfy all the four ingredients for sustaining a claim for malicious prosecution.” 24.Further, this Court in James Karuga Kiiru v Joseph Mwamburi & 3 others, Nairobi Civil Appeal No. 171 of 2000 observed as follows on the tort of malicious prosecution:“To prosecute a person is not prima facie tortious, but to do so dishonestly or unreasonably is. Malicious prosecution thus differs from wrongful arrest and detention, in that the onus of proving that the prosecutor did not act honestly or reasonably, lies on the person prosecuted.” 25.It is not in dispute that the criminal proceedings were instituted by the respondents, and that they terminated in the appellant’s favour upon his acquittal under Section 215 of the Criminal Procedure Code. The central issue, however, is whether the appellant established that the prosecution was instituted without reasonable and probable cause or that it was actuated by malice. 26.Upon our consideration of the record, we are unable to fault the concurrent findings of the two courts below that there existed reasonable and probable cause to warrant the appellant’s arrest and prosecution. Indeed, the trial court in the criminal case itself acknowledged that the impugned receipt was not genuine and that there existed evidence linking the appellant to the transaction. The appellant’s acquittal was principally occasioned from doubts regarding the sufficiency and quality of the evidence required to sustain a criminal conviction to the required standard of proof beyond reasonable doubt, particularly on the question whether the appellant was the actual author or utterer of the receipt, and the absence of an identification parade. 27.The learned trial magistrate further observed that there was a lapse in the procedure adopted in identification of the appellant and that the prosecution had failed to eliminate doubt arising from the involvement of one John Ayoki. Those findings, however, did not negate the existence of reasonable grounds upon which the respondents sought to institute criminal prosecution against the appellant in the first instance. 28.As has repeatedly been stated by this Court, an acquittal per se does not establish malice or absence of reasonable and probable cause. A prosecution does not become malicious merely because it ultimately fails. The question is whether, at the time the prosecution was commenced, the respondents honestly believed, on reasonable grounds, that the appellant was probably guilty of the offences charged. On the material presented to the investigators, including the recovery of a missing KRA receipt linked to the appellant by witnesses involved in the clearance process, we are satisfied that such reasonable basis existed. 29.We are equally unpersuaded that the appellant proved malice. No evidence was tendered to demonstrate that the respondents were actuated by spite, ill-will, improper motive, or any purpose other than enforcement of the law. The investigations may ultimately have fallen short of the standard required to secure a conviction, but imperfect investigations or failure to secure sufficient evidence do not, without more, establish malice. The record instead shows that the respondents acted upon a complaint regarding missing KRA receipt books and pursued investigations after one of the receipts resurfaced during a customs clearance transaction. 30.The appellant also faulted the respondents for failure to conduct an identification parade and for relying on allegedly weak evidence. In our considered opinion, those issues were important in the determination of the strength and sufficiency of the prosecution’s case in the criminal proceedings. They do not, ipso facto, establish that the prosecution lacked reasonable and probable cause. The criminal court’s observations regarding weaknesses in identification evidence merely explained why the prosecution failed to attain the threshold of the required standard of proof beyond reasonable doubt. 31.The appellant further contended that the learned Judge failed to re-evaluate the evidence as required of a first appellate court. We have carefully considered the judgment of the High Court and are satisfied that the learned Judge properly reconsidered the evidence and correctly appreciated the applicable principles governing claims for malicious prosecution and false imprisonment. We discern no misdirection warranting interference by this Court. 32.In the end, we find no merit in this appeal. The appellant failed to establish that the respondents acted without reasonable and probable cause or that the prosecution was actuated by malice. The appeal is accordingly dismissed. 33.As the respondents did not participate in the appeal, we make no order as to costs. DATED AND DELIVERED AT KISUMU THIS 12TH DAY OF JUNE, 2026.ASIKE-MAKHANDIA.............................JUDGE OF APPEALH.A. OMONDI.............................JUDGE OF APPEALL. KIMARU.............................JUDGE OF APPEALI certify that this is a true copy of original.SignedDEPUTY REGISTRAR