https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10345

Ngure v Kenya Nut Company Ltd & another (Civil Appeal E003 of 2025) [2026] KEHC 10345 (KLR) (Civ) (2 July 2026) (Judgment) Neutral citation: [2026] KEHC 10345 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Civil Civil Appeal E003 of 2025 D Mburu, J July 2, 2026 Between Fredrick Gikeri Ngure Appellant and Kenya Nut Company Limited 1st Respondent The Hon Attorney General 2nd Respondent (Being an appeal from the judgment of Hon Rawlings Liluma Musiega (Principal Magistrate) at the Chief Magistrates Court, Nairobi, Milimani Commercial Division, delivered on 6th December 2024 in MCCC NO. E642 of 2023) Judgment 1.Before this court is a Memorandum of Appeal dated 3rd January 2025 seeking orders that:i.The appeal be allowed, and the judgment dated 6th December 2024, together with the decree issued therein be set aside.ii.That judgment be entered in favour of the appellants as per the plaint filed in MCCC E642 of 2023.iii.That in the alternative, the High Court orders a retrial in the Chief Magistrates Court, Nairobi Milimani Commercial in MCCC E642 of 2023 before another magistrate.iv.Costs and interest of the suit be borne by the respondent. 2.The grounds of this appeal are:i.That the honourable Magistrate erred in law and in fact by relying heavily on the submissions of the respondents without considering the submissions of the appellant.ii.That the magistrate erred in law and in fact by failing to rely on the submissions made by the appellant on quantum.iii.That the magistrate erred in law and in fact by failing to consider the appellant’s bundle of documents and the evidence, whose failure to consider lacked basis.iv.That the magistrate erred in law and in fact by giving an unreasoned judgment contrary to the evidence on record from the list of documents and witness statements which were not rebutted.v.That the magistrate misdirected himself by holding that the appellant was not entitled to an award for wrongful, unlawful and illegal arrest.vi.That the magistrate erred in law and in fact by introducing new evidence, facts and pleadings by trying to make out a case for the respondents against the appellant and in total disregard of the submissions filed.vii.That the magistrate erred by completely ignoring and misinterpreting the evidence filed by the appellant.viii.That the magistrate erred by failing to base his judgment on justifiable reasons.ix.That the magistrate erred by failing to be impartial in determining the matter as required and failed to consider justice for both parties.x.That the magistrate erred by determining the case basing his reasons on a matter outside his jurisdiction and disregarded the actual subject matter, which was unlawful arrest, detention and prosecution.xi.That the magistrate erred in law and in fact by holding that the balance of probabilities tilted in the respondent’s favour without due regard to the rules of evidence, generally in tandem with the exhibits presented. Background Of The Appeal 3.The plaintiff, the appellant in this appeal, commenced the proceedings at the trial court vide a plaint dated 6th February 2023. In his plaint, he prayed for judgment against the defendants for: unlawful arrest, damages for malicious prosecution, cost for rehabilitating his traumatized children and himself, cost of the suit together with interest and special damages of Kshs 350,000/=. 4.Prior to the claim in the trial court, the appellant herein had been charged with the offence of stealing or theft by servant contrary to section 281 of the Penal Code in Criminal Case Number 1263 of 2015. The particulars were that the appellant, being under the employment of the 1st respondent, failed to remit Kshs 812,000/= to the respondent’s company in the course of his duties. 5.The appellant was tried and consequently acquitted under section 215 of the Criminal Procedure Code. 6.During the trial, the 2nd respondent submitted that the police could not be faulted for relying on a justifiable and reasonable cause leading to the arrest of the appellant. The 2nd respondent submitted that the arrest made by the police was founded on a justifiable complaint, thus lawful. 7.The 2nd respondent submitted that the appellant was prosecuted lawfully and that the claim of malicious prosecution could not be sustained. The respondents submitted that an acquittal under section 215 of the Criminal Procedure Code is insufficient to warrant a claim for malicious prosecution. The 2nd respondent submitted that the police were discharging their statutory mandate and urged the court to dismiss the appellant’s claim. 8.The 1st defendant submitted that the appellant had not presented any evidence of malice and urged the court to dismiss the appellant’s claim of malicious prosecution. The 1st defendant submitted that the appellant did not prove his claim on a balance of probabilities and was therefore not entitled to the reliefs sought. 9.The appellant faulted the defendants, respondents herein, for failing in the prosecution on the following grounds:a.That the prosecution did not produce documentary evidence like the alleged letter of admission, leaving doubt in the authenticity of the letter they presented to suit their defence.b.That the prosecution did not present the disciplinary proceedings alleged.c.That there was no confirmation from the 1st respondent’s customer that the plaintiff, appellant herein, received money directly from the customers. The appellant submitted that the prosecution did not present any customer as a witness.d.That there was no audit report in respect of the alleged stolen money, and that there was no representative from the 1st appellant’s accounts department to produce invoices and details of the client’s accounts. 10.The appellant submitted to the trial court that the police did not do a proper investigation. The appellant submitted that had the police done proper investigations, he would not have lost his job and suffered the distress he suffered. 11.The trial court dismissed the appellant’s claim of malicious prosecution and entered judgment in favour of the respondents. The presiding magistrate indicated that there was no evidence establishing that the 1st respondent’s claim was actuated by improper and malicious motives to punish the appellant. Moreover, he stated that the appellant ought to have instituted a claim for unlawful termination at the Employment and Labour Relations Court. 12.By a brief perusal of the judgment in Criminal Case 1263 of 2015, the trial magistrate acquitted the appellant on account that the prosecution did not call any customer to testify, yet they alleged that the accused received money from customers. The magistrate stated that the same presented a missing link in the prosecution’s case and acquitted the accused. Proceedings At The High Court 13.After the appeal was lodged, the appellant served the respondents; however, both respondents did not enter appearance nor file any documents to be relied on by this court in determining the appeal. Despite the circumstances, this court will proceed to determine the undefended appeal on merit in the interest of justice. 14.The appeal was canvassed by way of written submissions. The appellant filed written submissions dated 27th April 2026. The appellant submitted that the appellant was wrongly and maliciously prosecuted on the following limbs:a.That the respondents failed to prove any loss of money to sustain the crime of stealing by a servant.b.That the respondents failed to call the relevant witnesses to testify, including customers and the supervisor.c.That the 1st respondent failed to produce the relevant invoices as evidence.d.That the appellant was acquitted under section 215 of the Criminal Procedure Code. 15.The appellant submitted that the conduct of the respondents in setting out the criminal proceedings was fuelled by malice. The appellants submitted that the trial magistrate erred in fact and in law by failing to award the appellant damages for malicious prosecution. Analysis And Determination 16.The role of the Court, being a first appellate court was discussed in the matter of Kamau versus Mungai (2006) eKLR. The court established as follows:“This being the first appeal, it is the duty of the court to re-evaluate the evidence, assess it, and reach its own conclusion, remembering that it had neither seen nor heard the witnesses and hence making due allowance for that.’’ 17.Therefore, this Court is not bound to follow the trial court’s findings of fact if it appears either that the court has failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or the impression based on the demeanor of a witness is inconsistent. 18.This Court, having perused the undefended appeal, finds the following issue for determination:a.Whether the appellant proved his claim of malicious prosecution on a balance of probabilities?b.Whether the appellant is entitled to the reliefs sought? Whether the offence of malicious prosecution has been proved? 19.The appellant, vide a plaint, prayed for judgment against the respondents on account of malicious prosecution. 20.The tort of malicious prosecution has been extensively discussed by our courts. In the case of Stephen Gachau Githaiga versus Attorney General (2015) eKLR, Mativo J held that the ingredients of the offence of malicious prosecution are:i.The plaintiff must prove that the prosecution was initiated by the defendant.ii.That the prosecution terminated in the plaintiff’s favour.iii.That there was absence of reasonable and probable cause to commence or continue the prosecution.iv.That the defendant’s conduct in setting the prosecution was out of malice. 21.On whether the prosecution was initiated by the defendants, the appellants herein, there is no dispute that indeed it is the 1st respondent, who reported the matter to the police leading to institution of a charge in the Criminal Court. The matter was filed by the agents of the 2nd respondent. The second ingredient, whether the prosecution terminated in favour of the plaintiff, is also not in issue since it is not disputed that the appellant was eventually acquitted under section 215 of the Criminal Procedure Code in criminal case number 1263 of 2015. As such, these two ingredients are therefore not in issue, and were thus satisfactorily established. 22.The bone of contention in this appeal is on whether the prosecution or its continuance was conducted without probable cause and whether the same was actuated by malice on the part of the respondents. 23.In this matter, it is clear that the trial magistrate dismissed the appellant’s claim on the basis that the agents of the 2nd respondent instituted the criminal proceedings on the information that a crime had been committed and reasonably suspected the appellant to be the offender. On the other hand, the appellant argues that the prosecution was ill-informed and relies heavily on his acquittal under section 215 of the CPC as evidence of the malicious prosecution. 24.In the case of Robert Okeri Ombeka v Central Bank of Kenya (2015) eKLR, the Court of Appeal stated that an acquittal or discharge in a criminal prosecution should not necessarily lead to a cause of action in malicious prosecution lawsuits. In a claim for malicious prosecution, a plaintiff cannot establish the lack of probable cause based on having obtained, in an earlier action, an acquittal based on insufficiency of the evidence. Successfully defending a prosecution or a law suit does not establish that the suit was brought without probable cause. 25.Upon perusal of the judgment issued by the trial court, I find that the trial magistrate went overboard to analyse employment issues arising in the manner in which the termination of the appellant occurred. He fails to address the crux of the issue of malicious prosecution before him. 26.This court will therefore determine whether there was probable cause in instituting the proceedings in the criminal court. 27.In the case of Kagame versus Attorney General (1969) EA, it was held as follows:“Reasonable and probable cause is an honest belief in the guilt of the accused based a full conviction founded upon reasonable grounds of the existence of a state of circumstances, which, assuming them to be true, would 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.’’ 28.Reviewing the evidence before the trial court, the respondents, through their witness statements, stated that the criminal proceedings were instituted after money was lost by the 1st respondent, and the appellant was the suspect. 29.The appellant submitted that there was fraud in the letters relied on by the respondents which they never presented before the trial court. Fraud must be particularly pleaded and proven. The appellant does not prove the particulars of the alleged fraud. 30.The appellant pleads malice on the respondents on the ground that the respondents did not call customers to testify and did not present documentary evidence to support their charge of stealing by a servant. 31.Failure of the prosecution to call witnesses and present documentary evidence does not amount to malice on the part of the prosecution. This failure would only be punished by entering an acquittal in favour of the accused, which is the fate suffered herein. 32.In Bukenya v Uganda (1972) EA 549, the court held that the prosecution must make available all witnesses to establish the truth, even if their evidence is inconsistent. The court reiterated that where the evidence called is barely adequate, the court may infer that the uncalled witnesses' evidence would have tended to be adverse to the prosecution. 33.Therefore, where the prosecution fails to present witnesses and substantive evidence, the same cannot be considered malicious but only leads to an acquittal. 34.Based on this analysis, I find that there is no evidence on record establishing malice on the part of the prosecution. It therefore follows that among the four (4) ingredients of the offence of malicious prosecution discussed above, the appellant has only proved that the prosecution was instigated by the respondents and the same terminated in his favour. 35.This is a conjunctive test and in the absence of the other two ingredients, the appeal fails. 36.Having established that the claim of malicious prosecution fails, determining the second issue on whether the appellant is entitled to the reliefs sought would amount to an academic exercise. Disposition 37.In light of the above circumstances, the appeal is hereby dismissed with no order on costs. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 2ND DAY OF JULY 2026.DAVID MBURUJUDGE.