Wambui v Equity Bank Ltd & 2 others (Civil Appeal E802 of 2024) [2026] KEHC 8509 (KLR) (Civ) (5 June 2026) (Judgment)

Wambui v Equity Bank Ltd & 2 others (Civil Appeal E802 of 2024) [2026] KEHC 8509 (KLR) (Civ) (5 June 2026) (Judgment) Neutral citation: [2026] KEHC 8509 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Civil Civil Appeal E802 of 2024 FR Olel, J June 5, 2026 Between Esther Wangari Wambui Appellant and Equity Bank Limited 1st Respondent Director of Public Prosecution 2nd Respondent The Hon Attorney General 3rd Respondent (Being an appeal from the judgment and decree of the Hon E.C Chelule (RM) dated 29th february 2024 delivered In Millimani CMCC Case No E987 of 2021) Judgment A. Introduction 1.This Appeal arises from the judgement/ decree passed by Hon E.C Chelule (R.M) dated 29th February 2024, where he dismissed the appellant’s suit on the basis that she had not proved her case on balance of probabilities to establish that the respondents had maliciously prosecuted her and consequently dismissed her suit. Each party was directed to bear their own costs. 2.The background hereto was that the appellant vide her plaint dated 11th February 2021 did sue the respondents and averred that on or about the 17th March 2014, police officers acting on a malicious complaint made by the 1st respondent, chief security officer, one Nicholas Kyau, did wrongfully and without justifiably cause arrest her and subsequently on 18th March 2014, the 2nd respondent without reasonable cause maliciously prosecuted her based on trumped up charges in Nairobi criminal case No 401/2014 where she was charged with the offence of stealing contrary to section 268(1) as read with section 275 of the Penal code. 3.Subsequently on 4th April 2016, the 2nd respondent did amend the charge sheet to charge her with the offence of conspiracy to commit a felony contrary to Section 393 of the Penal code and again on 21st November 2018 amended the particulars of the said chargesheet by stating that she conspired with others not before court to commit a felony of stealing Kshs 760,900/= the property of the 1st respondent. 4.That after protracted trial, on 12th February 2020, she was acquitted of the charge she faced under Section 215 of the Penal code. It was her contention that her prosecution was perpetuated without reasonable and probable cause and therefore maliciously instigated, and gave particulars thereof. She spent Kshs.264,440/= to hire legal services and on payment of various court fees, was inconvenienced since she lost her job and likely prospects of alternative employment, and had therefore suffered mental anguish, pain, damage to reputation, loss of time, loss of money and reputational damage before right thinking members of the public, family friends and peers. She thus prayed to be compensated for the same by an award of special, general damages for wrongful arrest and unlawful detention, aggravated and exemplary damages. 5.Upon being served, the 1st respondent did file their statement of defence dated 9th July 2021, where they denied that they had made any malicious compliant to the police and/or that the appellant was arrested without probable basis and/or maliciously prosecuted. They further stated that they had received twenty-two (22) complaints by their clients of irregular and unexplained ATM withdrawals on their respective bank accounts, which ONLY transpired after visiting Virginia Ndinda’s Equity Agent at Githurai where the appellant was the Agent user. Therefore, there was reasonable suspicion that the fraud on the said customer accounts was perpetuated by none other than the appellant in cohort with other criminals 6.The 1st respondent further avers that they were merely exercising its duty of care to its customers and the complaints raised were referred to the Banking fraud investigations unit, (BFIU) for further action and were not involved in the appellants subsequent arrest and arraignment before court. They further denied that the appellant was subjected to wrongful detention as she was granted bond of Kshs.100,000/= immediately on being charged and her detention for a period of 36 days was as a result of her own inability to raise the cash bail aforestated. 7.Further, with regard to the trial delays complained off, they were not to blame for the same as the court controlled its own diary, there were transfer of the trial magistrate’s and unavailability of near trial dates, all of which were beyond their control. The mere fact that the appellant was acquitted was also not sufficient ground for filing a claim for malicious prosecution or false imprisonment and put the appellant to strict proof thereof. 8.The 1st respondent thus urged the court to dismiss the appellants claim with costs. The 2nd and 3rd respondents also filed their joint statement of defence where they denied all the averments made in the plaint and put the appellant to strict proof thereof. They further averred that the police officer’s involved arresting and investigating the appellant had acted within their statutory mandate and could therefore not be blamed for so acting. They thus urged the court to dismiss the suit filed against them with costs. B. Facts at Trial 9.The appellant relied entirely on the contents of her witness statement dated 11.02.2021 and documents filed in support of her claim all of which were admitted as evidence. She regurgitated the facts as stated in the plaint, that on 17.03.2014 she had been arrested by police officers attached to BFU based on a malicious and wrongful complaint filed by an officer of the 1st respondent known as Nicholas Kyau. As a result, she had been charged in Nairobi Criminal Cace No 401 of 2014 with the offence of stealing by servant contrary to section 268(1) as read with section 275 of the penal code, later charge sheet was amended to the charge of conspiracy to commit a felony contrary to section 393 of the Penal code, and the allegedly stolen amount enhanced to Kshs.760,900/=. 10.As a result, she had been subjected to false and wrongful detention for about 36 days at Langata women Prison and was later released after raising the bond amount of Kshs.50,000/=. After lengthy trial, she was acquitted on 12th February 2020 under section 215 of the criminal procedure code and as a result had suffered mental anguish and pain, damage to reputation and lost opportunity. She thus urged the court to compensate her for damages suffered. Under cross examination she confirmed that she worked for Virginia Ndinda, the Equity Agent owner, who had sent her to the bank, where she was arrested by 1st respondent security officer and 2 officers from central police station. She insisted that she was innocent and had been arrested to cover up for the main culprits, who virgina Ndinda knew had stolen the money claimed. 11.The 1st respondent called Mr Nicholas Kyau, their manager security and Investigations department, who adopted his witness statement dated 08.12.2021 and also produced their bundle of documents into evidence. He stated hey had received complaints from customers, who had transacted at the Agency, where the appellant worker as the Agent user and after making their normal transactions, their accounts had strange debits done without their approval (22 unapproved transactions). He did visit the said agency and retrieved the agent transaction register and compelled the appellant to accompany him to the bank since she was the agent user, who dealt with all the said customers, who later raised their complaints and this had raised reasonable suspicion that the fraud in the customers’ accounts were perpetuated through a conspiracy involving the appellant and other unidentified fraudsters and/or criminal. 12.He handed over the investigations to the police and later testified before the trial court. DW1 further stated that the appellant was a person not known to him and they had not interacted before in any manner and thus did not have any prejudice against her and no malice could be imputed in his actions. There was also probable cause for arresting and prosecuting the appellant and thus urged the court to dismiss the claim filed. 13.Under cross examination, he confirmed that the bank was the complainant and after investigation, they had found reasonable grounds to prosecute the appellant. He also confirmed that investigations did not find the agency owner culpable and thus was not charged. Customer’s money had been stolen through card skimming, but he could not tell if it was the appellant herself who had effected the said act nor did he find any skimming gadget or card within the shop where she was employed. He reiterated that the appellant was the chief suspect, because clients lost money after using the gadget which was under her care, and all the affected customers had all been served by her. 14.The 2nd and 3rd defendant did not call any witness and proceeded to close their case. 15.The trial Magistrate did consider the pleading filed, evidence adduced and the parties’ submissions and held that the appellant fell short of proving the ingredients of malicious prosecution and thus had not prove her case on a balance of probability. Consequently, the court held that there was no malice on the respondent’s actions and proceeded to dismiss the appellants claim for damages. Each party was directed to meet their own costs. C. The Appeal 16.Being dissatisfied and aggrieved by the said Judgment the appellant filed her memorandum of appeal raising six (6) grounds of appeal, namely;a.That the Honourable trial Magistrate erred in law and in fact by failing to consider all the issues raised by the plaintiff in pleadings, evidence and submissions thereby disregarding material evidence placed before the court.b.That the learned Honourable trial Magistrate erred in law and in fact in holding that there was no malice on the part of the 2nd respondent with regard to the manner of their conduct during investigations and the course of proceedings in the trial court.c.That the learned Honourable trial Magistrate erred in law and in fact in finding that the plaintiff fell short of proof of the ingredient’s that are essential for malicious prosecution.d.That the learned Honourable trial Magistrate erred in law and in fact by holding that the plaintiffs claim for damages lacked merit.e.That the Honourable trial Magistrate erred in law and in fact in failing to hold that the prosecution against the plaintiff was instituted without probable cause.f.That the Honnourable trial Magistrate erred in law and in fact in applying the wrong principles hence arriving at a wrong decision 17.The Appellant thus urged this court to find that the appeal filed has merit and that it be pleased to set aside the judgment dated 29.02.2024 delivered in Milimani CMCC No E987 of 2021 and to substitute the same and make a finding in line with the reliefs sought therein. D. Analysis and Determination 18.I have considered this appeal, submissions, and the impugned judgment. I have also considered the decisions relied on and perused the trial court’s record. This being a first appeal, it is by way of a retrial, and this court, as the first appellate court, must re-evaluate, re-analyze, and re-consider the evidence afresh and draw its conclusions on it. The court should, however, bear in mind that it did not see the witnesses as they testified and give due allowance for that. (see Selle v Associated Motor Boat Co Ltd & Others [1968] EA 123) & Peters Vs Sunday Post Limited (1968) EA 123 . 19.A first appellate court is also the final court of fact, and litigants are entitled to full, fair, independent consideration of the evidence. The parties have a right to be heard both on issues of fact and issues of law, and the court must address itself to all issues raised and give reasons thereof. While considering the entire scope of section 78 of the Civil Procedure Act, a court of first appeal can appreciate the entire evidence and come to a different conclusion. See Kurian Chacko Vs Varkey Ouseph AIR 1969 Kerala 316. 20.The issues that arise in this Appeal is whether the Appellant did prove her case, that she was maliciously prosecuted by the respondents and thus is entitled to be awarded damages. The law guiding the tort of malicious prosecution is well settled in this Country. In Mbowa Vs East Mengo District Administration (1972) EA 352, the East African Court of Appeal expressed itself as follows:’“The actions for damage for malicious prosecution is part of the common laws of England…The tort of malicious prosecution is committed where the is no legal reason for instituting criminal proceedings. The purpose of the prosecution should be personal and spite rather than for the public benefit. It originated in the medieval writ of conspiracy which was aimed against combinations to abuse legal procedure, that is, it was aimed at the prevention or restraint of improper legal proceedings…It occurs as a result of the abuse of the minds of judicial authorities whose responsibility is to administer criminal justice. It suggests the existence of malice and the distortion of the truth. Its essential ingredients are:(1)the criminal proceedings must have been instituted by the defendant, that is, he was instrumental in setting the law in motion against the plaintiff and it suffices if he lays an information before a judicial authority who then issues a warrant for the arrest of the plaintiff or a person arrests the plaintiff and takes him before a judicial authority;(2)the defendant must have acted without reasonable or probable cause i.e there must have been no facts, which on reasonable grounds, the defendant genuinely thought that the criminal proceedings were justified;(3)the defendant must have acted maliciously in that he must have acted, in instituting proceedings, with an improper and wrongful motive, that is, with an intent to use the legal process in question for some other than its legally appointed and appropriate purpose; and4)the criminal proceedings must have been terminated in the plaintiff’s favour, that is, the plaintiff must show that the proceedings were brought to a legal end and that he has been acquitted if the charge…In other words, the four requirements must “unite” in order to create or establish a cause of action. If the plaintiff does not prove them he would fail in his action. The damage that is claimed is in respect of reputation but other damages might be claimed, for example, damage to property …. The damage to the plaintiff results at the stage in the criminal proceedings when the plaintiff is acquitted or, if there is an appeal, when his conviction is quashed or set aside. In other words, the damage results at a stage when the criminal proceedings came to an end in his favour, whether finally or not. The plaintiff could not possibly succeed without proving that the criminal proceedings terminated in his favour, for proving any or all of the first three essential of malicious prosecution without the fourth which forms part of the cause of action, would not take him very far. He must prove that the court has found him not guilty of the offence charged…..The law in an action for malicious prosecution has been clearly defined and in so far as the ordinary criminal prosecution is concerned the action does not lie until the plaintiff has been acquitted of the charge. 21.The second test for the court to consider whether a case was instituted with a reasonable and probable cause. In the case of Hicks v Faulkner [1878] 8 Q.B.D 167 at 171, Hawkins J held as follows with respect the meaning of reasonable and probable cause: -“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 any ordinarily 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.The Court of Appeal in Kagane & Other v The Attorney General & Another [1969] EA 643, also discussed the same issue, where Rudd J held as follows: -“…the question as to whether there was reasonable and probable cause for the prosecution is primarily to be judged on the basis of an objective test. That is to say, to constitute reasonable and probable cause, the material within the knowledge of the prosecutor at the time he instituted the prosecution, whether that material consisted of facts discovered by the prosecutor 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. If and so far as that material is based upon information, the information must be reasonably credible, such that an ordinary reasonable prudent and cautious man could honestly believe to be substantially true and to afford a reasonably strong basis for the prosecution.” 23.The last element on whether the prosecution was actuated by malice In Nzoia Sugar Company Ltd v Fungututi [1988] KLR 399, the Court of Appeal held;“Acquittal per se on a criminal charge is not sufficient basis to ground a suit for malicious prosecution. Spite or ill-will must be proved against the prosecutor. The mental element of ill will or improper motive cannot be found in an artificial person like the appellant but there must be evidence of spite in one of its servants that can be attributed to the company.” 24.A similar position was also adopted by Mativo, J in Stephen Gachau Githaiga vs Attorney General (2015) eKLR, where he held that:“…the initiation of criminal proceedings in the absence of reasonable and probable grounds does not itself suffice to ground a plaintiff’s case for malicious prosecution, regardless of whether the defendant is private or public actor. Malicious prosecution, as the label implies, is an intentional tort that requires proof that the defendant’s conduct in setting the criminal process in motion was fueled by malice. The malice requirement is the key to striking the balance that the tort was designed to maintain: between society’s interest in the effective administration of criminal justice and the need to compensate individuals who have been wrongly prosecuted for a primary purpose other than that of carrying the law into effect.” 25.The foregoing, in my considered view set out the law and the conditions to be satisfied in order for a plaintiff to succeed in the tort of malicious prosecution. 26.Back to the facts of this appeal, it is not doubt that the criminal proceedings were initiated against the appellant on the complaint made by the 1st respondent, resulting in the appellant being charged in Nairobi Criminal Case No 401 of 2014, with the offence of stealing contrary to section 268(1) as read with section 275 of the penal code and was later amended and she pleaded afresh to the offence of conspiracy to commit a felony contrary to section 393 of the penal code. During trial, the appellant was put on her defence, but eventually was acquitted under section 215 of the criminal procedure code. 27.With respect to whether there was reasonable cause and/or justification to make the complaint to the police, the Learned Trial Magistrate found that there was infact a reasonable cause to make the said complaint and having reviewed the evidence presented I do find that there was no error in this finding as the appellant was the agent user at the Equity Agent shop where all twenty two (22) complaints of unexplained and irregular ATM withdrawals/ card skimming were raised. Indeed, a justifiable inference and reasonable suspicion could be raised that the fraud on the said customer accounts were perpetuated from a conspiracy involving the appellant and other unidentified fraudsters and/or criminals. 28.Finally, on whether there was malice in arresting and prosecuting her, the appellant did not prove this element, and there is nothing on record to show that the police had an improper motive to investigate, arrest and charge the appellant and/or that the 2nd respondent acted with spite or ill will to prosecute her case. E. Disposition 29.Flowing from the above, I do find that learned trial Magistrate did not err in arriving at the conclusion made in the impugned judgment. This appeal therefore lacks merit and the same is dismissed with costs to the respondents. 30.It is so ordered. DATED, SIGNED, AND DELIVERED IN OPEN COURT AT MARSABIT THIS 5TH DAY OF JUNE 2026.FRANCIS RAYOLA OLELJUDGEDelivered on the virtual platform, Team this 5th day of JUNE ,2026.In the presence of: -………………………N/A………………………………..Appellant……………………………N/A…………………………. Respondent………………………JARSO………………………………. Court Assistant