https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9855

Booko v Attorney General (Civil Case E080 of 2025) [2026] KEHC 9855 (KLR) (Civ) (30 June 2026) (Ruling) Neutral citation: [2026] KEHC 9855 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Civil Civil Case E080 of 2025 SN Mutuku, J June 30, 2026 Between Eucabeth Nyambeki Booko Plaintiff and The Hon Attorney General Defendant Ruling Background 1.By way of the plaint dated 27.03.2025 and amended on 6.02.2026 Eucabeth Nyambeki Booko (the Plaintiff) instituted the present suit against The Hon. Attorney General (the 1st Defendant) and Eco Bank Kenya Limited (the Defendant) seeking various reliefs arising from a claim founded on malicious prosecution. 2.The Defendant filed a statement of defence dated 26.06.2025 denying the key averments in the plaint and liability. Subsequently, Attorney General filed a notice of Preliminary Objection (PO) dated 3.09.2025 seeking to have the Plaintiff’s suit against it struck out for being time barred, incompetent and a non-starter by dint of Section 3(1) of the Public Authorities Limitation Act. The PO was allowed and the suit against the Attorney General was struck out, necessitating the amendment of the pleadings accordingly. The Preliminary Objection 3.The current PO has been moved by the Defendant in the amended pleadings. It is based on the following grounds:i.That the Plaint discloses no reasonable cause of action against the Defendant in law, the pleadings demonstrating that the arrest, investigation and prosecution of the Plaintiff were undertaken by independent State agencies acting pursuant to their constitutional and statutory mandates.ii.That the tort of malicious prosecution cannot lie against a party who merely makes a report or complaint to investigative authorities, where the decision to investigate, charge and prosecute is independently undertaken by the Police and the Director of Public Prosecutions pursuant to Article 157 (10) and 157 (6) of the Constitution of Kenya, 2010.iii.That following the striking out of the Attorney General from these proceedings, the Plaintiff’s claim against the Defendant lacks the necessary legal foundation, there being no pleaded facts capable of establishing that the Defendant instituted or controlled the criminal proceedings complained of.iv.That the Plaint is therefore incompetent, misconceived and an abuse of the process of the Court, and ought to be struck out in limine with costs being awarded to the Defendant.” sic Grounds of Opposition 4.The Plaintiff has put in Grounds of Opposition dated 27.02.2026 challenging the PO. In sum, the Plaintiff argued that a PO ought to be based on pure points of law without the need for ascertaining the facts of a matter. That the PO raised by the Defendant is incompetent, untenable and does not meet this threshold as it would require the court to delve into the contested facts or the dispute herein. The Plaintiff urged that the preliminary objection be dismissed for want of merit. Parties’ Submissions 5.Parties to this dispute filed submissions to address the PO. In support thereof, the Defendant relied on the cases of Mukisa Biscuit Company v West End Distributors Limited (1969) EA 696 and Hassan Nyange Charo v Khatib Mwashetani & 3 others [2014] eKLR on the definition of a PO and submitted that this being a claim founded on malicious prosecution, it would be incumbent upon the Plaintiff to prove the Defendant’s involvement and participation in her arrest and prosecution. That, the Defendant is merely a financial institution who bears the legal mandate to report financial irregularities and that it lodged a report in line with its legal obligation and in good faith. That save for lodging the report, it did not play any other role in the decision to arrest and prosecute the Plaintiff, as such decision solely rested with the police and the Office of the Director of Public Prosecutions (ODPP). 6.The Defendant submitted, further, that it cannot and should not be held liable for the acts undertaken by independent bodies. That it is clear that no reasonable cause of action has been brought against it. That following the order striking the former 1st Defendant from these proceedings, the Plaintiff’s claim against the Defendant lacks substance and cannot be sustained and that given that the prosecution of accused persons lies within the mandate of the State and having the State representative being struck out of these proceedings, the Defendant cannot be deemed vicariously liable for its actions and/or omissions. 7.The Defendant has argued that the report preceding the Plaintiff’s prosecution was made in good faith and was founded on reasonable cause and that the PO raised in this instance is founded on a point of law and ought to be allowed accordingly. 8.The Defendant also sought costs of the PO, citing, inter ali,a the case of Rai & 3 others v Rai & 4 others [2014] KESC 31 (KLR) in which the Supreme Court reaffirmed the legal principle that costs follow the event. 9.The Plaintiff opposed the PO and relied on the case of Mukisa Biscuit Company v West End Distributors Limited (1969) EA 696, cited in Martha Akinyi Migwambo v Susan Ongoro Ogenda [2022] KEHC 27035 (KLR) regarding the definition and principles applicable in respect of a PO. She also relied on the case of Oraro v Mbaja [2005] KEHC 3182 (KLR) in which the court held that a PO rides on a pure point of law and on uncontested facts. 10.She has submitted that the PO raised in this matter does not raise pure points of law but requires the investigation into the facts of the case as well as the evidentiary matters. That, the issues being raised regarding the extent of the Defendant's participation in the arrest and criminal proceedings which are now the subject matter of this suit, are substantive issues of fact which would require evidence supporting or challenging them. 11.The Plaintiff has maintained that the Defendant owed her a duty of care arising from their bank-customer relationship and that the Defendant cannot be heard to now evade liability by way of the PO. She urged that the Defendant’s PO is legally defective and ought to be dismissed with costs. Analysis and determination 12.I have given this matter due consideration. Guided by Mukisa Biscuit Company v West End Distributors Limited (1969) EA 696, and other related authorities on this issue, I am alive to what constitutes a PO. It must be based on a pure point of law. A PO is self-evident and does not require arguments to ascertain it. 13.I am also guided by the decision of the Supreme Court in Independent Electoral & Boundaries Commission v Jane Cheperenger & 2 others [2015] eKLR when it rendered itself thus:“It is quite clear that a preliminary objection should be founded upon a settled and crisp point of law, to the intent that its application to undisputed facts, leads to but one conclusion: that the facts are incompatible with that point of law.” 14.Applying that legal principle to the matter before the court, and having considered the positions taken by each party in this matter, I have addressed my mind to whether the instant PO raises pure points of law. My understanding of the issues arising from the present suit is that the dispute revolves around whether the Defendant had a role in the arrest and prosecution of the Plaintiff making it liable for malicious prosecution. To my mind, that issue can only be addressed fully through the interrogation of the circumstances surround the arrest and prosecution of the Plaintiff. This can only be done after taking considering evidence of both parties, that has been tested in cross-examination through a full hearing and the application of the law on the evidence so tendered. 15.After careful consideration of the PO and the rival arguments, I am persuaded that the PO does not meet the threshold of a PO as defined. It cannot therefore be sustained. 16.Consequently, the PO dated 23.02.2026 is hereby dismissed for failure to meet the threshold of a PO. Costs will abide the outcome of the case. 17.It is so ordered. DATED, SIGNED AND DELIVERED THIS 30TH DAY OF JUNE, 2026.S. N. MUTUKUJUDGE