https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9594

**** **REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MACHAKOS** **CIVIL DIVISION** **CIVIL CASE NO. 115 OF 2010** **FREDRICK MUROKI GRIEVE…………………….….……PLAINTIFF** **-VERSUS-** **THE ATTORNEY GENERAL………………..…………….1ST DEFENDANT** **ELIZABETH NZIVA NTHENGE………………..………….2ND DEFENDANT** **MARYANNE MUENI DENES……………………………...3RD DEFENDANT** **ALICE MULEKYO NZIOKA……………………...………..4TH DEFENDANT** **JUDGMENT** 1. This suit was initiated by a Plaint dated 18/06/2010 that was amended on 17/12/2019 in which the Plaintiff seeks the following reliefs; 1. ***A declaration that the arrest, incarceration and prosecution of the 1st Defendant at the behest of the 2nd, 3rd and 4th Defendants was unlawful and malicious.*** 2. ***A declaration that the 1st Defendant contravened the Plaintiff’s right to liberty under Section 72 of the former Constitution and that he is entitled to redress under Section 84 of the former constitution.*** 3. ***General damages*** 4. ***Special damages*** 5. ***Costs of this suit*** 6. ***Interest at court rates on (ii) (iii) and (iv) above*** 2. The Plaintiff avers that on or about 16/02/2006, the 2nd and 3rd Defendants without any reasonable excuse, actuated by malice made a complaint to the police at Yatta that the Plaintiff had stolen property among them Motor vehicle registration number KZA 513 Toyota Landcruiser belonging to their deceased sister and daughter respectively, one Josephine Mumbua Melhaff (deceased). 3. That despite the police Constable of Yatta Police Station, police officers from Tigoni Police station and the 3rd Defendant going to his home, conducting a search and finding that there was no stolen property, the Plaintiff was still arrested and taken to Tigoni Police Station and was later transferred to Yatta Police station where he stayed for 4 days without being informed of the charges that would be preferred against him. The reason for transfer was that he was wanted by the later police station for allegedly being a suspect for organizing robberies along Thika Garissa Highway and around Kithimani area. 4. The Plaintiff contends that the charges preferred against him were without basis, unreasonable, oppressive, illegal, scandalous, frivolous and an abuse of office. That despite the officers knowing that the subject motor vehicle belonged to Mr. Hans Dieter Mehlaff and not the 2nd and 3rd Defendants, he was still arrested. He contended that his right to liberty under section 72 of the former constitution and he is entitled to vindicatory damages for the contravention of that right. 5. The 1st Defendant entered appearance and filed a Statement of Defence dated 19/09/2014 wherein he denied the allegations raised in the Plaint and asked the court to dismiss the suit. 6. The 2nd and 4th Defendant filed a statement of Defence dated 12/09/2014 wherein they denied all allegations, contended that the Plaintiff did not have a cause of action against them and urged the court to dismiss the suit with costs. 7. The 3rd Defendant did not enter appearance nor a defence. 8. At the hearing, the Plaintiff called two witnesses in support of its case. PW1 was Fredrick Muroki Greive who told the court that he was arrested and was not told the reasons for his arrest. He relied on the statement filed on 29/09/2014 and told the court that the subject motor vehicle was immobile on his compound from 1998 to 2006. It was in the name of Hans Deiter Nelilaff who was the husband of the deceased. He indicated that he was discharged on 25/05/2009 and filed the suit on 18/06/2010. That the complaint was filed by the 2nd Defendant in collaboration with the 3rd and 4th Defendants and they all wrote statements. 9. On the charge sheet, the 2nd Defendant is indicated as the complainant. He told the court that the only OB number he saw was from Tigoni police station for 16/02/2006 which was reported to them by the police from Yatta Police station. He indicated that he was charged before Kithimani Court vide criminal case No 258 of 2006 with an offence of uttering a document with intent to deceive. 10. It was his testimony that the 2nd Defendant was a sister of the 3rd and 4th Defendant. That he was running a business with Josephine Mumbua Nthenge of a bar and restaurant. They met when they were students at Goethe Institute. He also stated that the police went to his home because they thought he had taken property not belonging to him. The declaration was made by Josephine herself in Germany. Upon arrival, he took her to Nairobi Hospital at his own cost. Further, he testified that the police only enquired about the car and household items but they only took him away. Lastly, it was his testimony that the case was withdrawn after the alleged forged documents went missing from the police file. 11. PW2 was Isabella S. Muroki, the wife of the Plaintiff who testified that the property that he co-owned with the late Josephine Mumbua was the issue that had been included in the grant. She stated that this issue was later resolved by Kamau Kuria Advocate. That the declaration was in 1998 and her husband did not alter any document, he was just helping the family. She knew Elizabeth Nthenge was mother to Josephine Melhaff and Elizabeth Nziva Nthenge was the complainant and recorded her statement when her husband was arrested. Mary and Mueni went to the police station and recorded a statement. 12. On the part of the 4the Defendant, she testified as DW1 and stated that the Plaintiff and the deceased sister ran a business together. That the Plaintiff was charged with collecting items that belonged to her sister and the accused person admitted to changing the sister’s items. She alleged that he also took sofa set clothes, cars, sewing machine and 3 shops and got away with the niece. He told the court that his brothers were Paul, John and Henry Kioko, that the Plaintiff was not his brother. 13. Parties proceeded to file written submissions. 14. The Plaintiff filed submissions dated 26/06/2025 and contended that the Court had jurisdiction to hear and determine the petition by virtue of Article 84 of the former constitution and Article 22 and 23 of the Constitution,2010. It was submitted that his rights had been infringed by his unlawful arrest and incarceration, malicious prosecution, right to liberty and that the proceedings were in bad faith. He rayed for general damages, vindicatory damages, aggravated damages plus costs of the suit. In support of its submissions, reliance was placed on the following cases; Ramanoop -v- Attorney-General of Trinidad and Tobago (2004) 1 Law Reports of the Commonwealth, Kimani v Attorney General [1969] EA 29 , Maneka Gandhi -v- Union of India & Another (1977) SC 597, Kituo Cha Sheria and 8 Others v Attorney General [2013] Eklr, Gairy v Attorney-General (2001), Angela Inniss v Attorney General of St. Christopher and Nevis, Privy Council no. 29 of 2007, Horace Fraser v Judicial and Legal Services Commission and the Attorney General [2008] UKPC 25, Florence Wamukanda and Another v Attorney General and 2 Others [2016] Eklr, Dominic Amolo Arony v the Attorney General. High Court Misc Civil Application No. 494 of 2003, Koigi Wamwere V Attorney General[2012]eKLR, Khalid Salim Ahmed v Attorney General and Another [2018] eKLR, Dr. Willy Kaberuka vs. Attorney General Kampala HCCS No. 160 of 1993, MW K and Another v Attorney General and 3 Others 15) John Muritu Kigwe and Susan Wanjiru Muritu v Attorney General, High Court of Kenya at Nairobi Misc. Civil Application No. 223 of 2000, Jasbir Singh Rai and 3 Others v Tarlochan Singh Rai and 4 Others [2014] eKLR and Republic v Communication Authority of Kenya and another ex parte Legal Advice Centre aka Kituo Cha Sheria [2015] eKLR 15. The 1st Defendant filed submissions dated 02/07/2025 in which counsel urged the court to dismiss the suit and submitted that the Plaintiff is irregularly seeking enforcement of constitutional rights by way of an Amended Plaint instead of the proper forum of filing a Constitutional Petition, and where a party approaches the Honourable Court in the wrong forum he ought not to be granted even the costs of the suit for abuse of court process 16. Secondly, that the Plaintiff did not ask for aggravated damages in the Amended Plaint and therefore the Honourable Court ought to disregard the Plaintiffs submissions on aggravated damages as parties are bound by their pleadings. The claim for tort of malicious prosecution, unlawful arrest and detention is statutorily time barred by dint of Section 3 (2) of the Public Authorities Limitation Act noting that the Plaintiff was acquitted on 25th May 2009 and he filed his suit herein on 18/6/2010 after the lapse of the limitation period of 12 months from the date of acquittal. 17. Lastly, the 1st Defendant referred to Section 72 of the former Constitution and contended that it allowed the police to arraign suspects before a court of law as was reasonably soon practicable after expiry of 24 hours and hence the police acted within the law and did not subject the plaintiff to unconstitutional deprivation of liberty taking judicial notice of the logistical challenges of the time. 18. The 2nd and 4th Defendants in submissions dated 17/07/2025 and indicated that the suit against the 2nd Defendant had abated since she dies in the course of the proceedings and she was not substituted as required by law. It was contended that the Plaint does not reveal any cause of action against them and should be dismissed. It was submitted that the Plaintiff did not comply with section 13 A of the Government Proceedings Act as no copy of statutory notice was filed thus the proceedings were a nullity ab initio. 19. Secondly, it was submitted that the doctrine of constitutional avoidance militates against a party disguising a civil claim as a constitutional question and seeks remedies that would otherwise be available in civil law. Thirdly, it was contended that the initial report was made by the 2nd Defendant who dies and was not substituted within a year as required by Order 24 Rule 4(3) of the Civil Procedure Rules, 2020. In addition, it was contended that the Plaintiff did not demonstrate that the report was made maliciously and there was no reasonable cause to make such a report. That the Plaintiff was charged with the offence of uttering a false document with the intention to deceive. The document was an undated patient declaration that describes the Plaintiff as a brother of deceased, Josephine Melhaff which the Plaintiff confirmed was false. That the only witness who could corroborate this information was the deceased husband who was not called as a witness in this case nor the criminal case. The 4th Defendant thus submitted that there was reasonable cause for making the report as they were not there when the deceased made that declaration. **LEGAL OPINON** 1. The court has considered the Pleadings, testimonies and submissions of the parties and find that the following are the issues for determination; 1. ***Whether the suit against the 2nd Defendant has abated?*** 2. ***Whether the suit was filed out of time?*** 3. ***Whether this court has jurisdiction to handle this suit?*** 4. ***Whether the Plaintiff has proven his case for malicious prosecution?*** ***Whether the suit against the 2nd Defendant has abated?*** 1. Order 24 Rule 4 of the Civil Procedure Rules, 2010 which provides for the Procedure in case of death of one of several defendants or of sole defendant, that; “(1) Where one of two or more defendants dies and the cause of action does not survive or continue against the surviving defendant or defendants alone, or a sole defendant or sole surviving defendant dies and the cause of action survives or continues, the court, on an application made in that behalf, shall cause the legal representative of the deceased defendant to be made a party and shall proceed with the suit. (2) Any person so made a party may make any defence appropriate to his character as legal representative of the deceased defendant. (3) Where within one year no application is made under subrule (1), the suit shall abate as against the deceased defendant. 1. The court gave directions on 06/06/2022 directing the Plaintiff to substitute the deceased defendant upon production of the death certificate. On record is a death certificate of one ELIZABETH NZIVA MATHENGE who died on 23/09/2016. No substitution has been done and I find that the suit against the 2nd Defendant abated on 23/09/2017. ***Whether the suit was filed out of time?*** 1. I note that this is an issue that was raised more than once during the trial of this suit. There was a notice of motion dated 20/07/2022 and the same was dispensed by a ruling delivered on 13/12/2022 where the court dealt with this issue and rendered itself as follows; “42. Thirdly, with regard to filing suit out of time the issue was cured by amendment of the pleadings/plaint as the Plaintiff/Applicant was granted leave to amend the Plaint wherein the amendment included violation of fundamental rights. After the amendment of the plaint files on 17/12/2019, none of the Defendants filed amended Defenses/ pleadings. There is no time frame prescribed for filing and determination of violation of fundamental rights.” 1. Subsequently, the 1st Defendant filed a notice of Preliminary Objection dated 14/11/2023 which was dispensed by a ruling delivered on 25/10/2024 where this position was re-affirmed. In the same decision. None of the rulings have been set aside or appealed against and that then settles this issue of time-bar with finality. ***Whether this court has jurisdiction to deal with this matter*** 1. This question was raised in the Notice of Motion and Preliminary objection and dealt with conclusively. I therefore find that there is no need to delabour on the same. If the said defendants were not satisfied with the rulings, they had the option of Appeal but to ask this court to revisit an issue that was heard and determine puts the court in an impossible position. It will be tantamount to asking the court to sit as an appellate court on its own decision; a position that is not tenable in law. ***Whether the Plaintiff has proven his case for malicious prosecution*** 1. The Plaintiff bears the burden of proof of the claim made in his pleadings. This principle is equally reflected and reinforced by the **Evidence Act, Cap 80 of the Laws of Kenya**, which provides that **he who alleges must prove**. In particular, **Section 107(1)** of the Act states: ***“Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist.”*** 1. The Plaintiff is duty-bound to lead credible and admissible evidence to demonstrate that his arrest was malicious and that he is entitled to award of damages. The standard of proof required is on the balance of probability. 2. Malicious prosecution was elucidated by the East African Court of Appeal in *Mbowa v East Mengo District Administration* [1972] EA 352 where the court rendered itself as follows; “The action for damages for malicious prosecution is part of the common law of England...The tort of malicious prosecution is committed where there 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 criminal 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; and (4),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 of the charge... The plaintiff, in order to succeed, has to prove that the four essentials or requirements of malicious prosecution, as set out above, have been fulfilled and that he has suffered damage. 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 essentials 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. In this case the respondent could have brought his action for malicious prosecution until the prosecution ended in his favour. He could not have maintained his action whilst the prosecution was pending nor could he have maintained an action after he had been convicted. His right to bring the action only accrued when he secured his acquittal of the charge on appeal, and he then had the right to bring this action for damages...Time must begin to run as from the date when the plaintiff could first successfully maintain an action. The cause of action is not complete until such a time, and in this case this was only after he was acquitted on appeal.” 1. In our jurisdiction, courts have had numerous occasions to consider matters of malicious prosecution. In the case of **Phen Gachau Githaiga & Another v Attorney General [2015] eKLR** Justice Mativo (as he then was) discussed the tort of malicious prosecution and stated as follows: **“Malicious prosecution is an intentional tort designed to provide redress for losses flowing from an unjustified prosecution. Under the first element of the test for malicious prosecution, the plaintiff must prove that the prosecution at issue was initiated by the defendant. This element identifies the proper target of the suit, as it is only those who were actively instrumental in setting the law in motion that may be held accountable for any dam age that results.The second element of the tort demands evidence that the prosecution terminated in the plaintiff’s favour. This requirement precludes a collateral attack on a conviction properly rendered by a criminal court, and thus avoids conflict between civil and criminal justice. The favourable termination requirement may be satisfied no matter the route by which the proceedings conclude in the plaintiff’s favour, whether it be an acquittal, a discharge at a preliminary hearing, a withdrawal, or a stay.The third element which must be proven by a plaintiff — absence of reasonable and probable cause to commence or continue the prosecution — further delineates the scope of potential plaintiffs. As a matter of policy, if reasonable and probable cause existed at the time the prosecutor commenced or continued the criminal proceeding in question, the proceeding must be taken to have been properly instituted, regardless of the fact that it ultimately terminated in favour of the accused.Finally, 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 a 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.”** 1. From the parameters set above; it is paramount to note that the mere fact that a matter as terminated in favour of accused person (plaintiff) does not necessarily means that such a plaintiff can succeed in a suit for malicious prosecution. Such Plaintiff, must demonstrate that the initiation of the criminal proceedings against him or her was actuated by malice. **Whether the prosecution was instituted by the Defendants?** 1. Under this limb, it has to be proved that the defendant is the one who set into motion the process that led to the arrest and prosecution of the plaintiff. In the case of Gitau vs AG (1990) KLR 13 it was stated “To succeed on a claim for malicious prosecution the plaintiff must first establish that the defendant or his agent set the law in motion against him on a criminal charge. Setting the law in motion” in this context has not the meaning frequently attributed to it of having a police officer take action, such as effecting arrest. It means being actively instrumental in causing a person with some judicial authority to take action that involves the plaintiff in a criminal charge against another before a magistrate. Secondly he who sets the law in motion must have done so without reasonable and probable cause…The responsibility for setting the law in motion rests entirely on the Officer-in-Charge of the police station. If the said officer believed what the witnesses told him then he was justified in acting as he did, and the court is not satisfied that the plaintiff has established that he did not believe them or alternatively, that he proceeded recklessly and indifferently as to whether there were genuine grounds for prosecuting the plaintiff or not. The Court does not consider that the plaintiff has established animus malus, improper and indirect motives, against the witness.” 1. The Plaintiff contends that the complaint was raised by the 2nd and 4th Defendant at the police station. This lead to the opening of SPMCC Criminal Case No. 258 of 2006 Republic vs Fredrick Muroki Grieve which was withdrawn under section 87(a) of the Criminal Procedure Code Cap 75 Laws of Kenya on 25/05/2009. I also not that the hearing had not taken off and there were many adjournments in the proceedings. 2. To this end, it is clear that the arrest of the Plaintiff resulted following a report made by 2nd and 3rd Defendants in respect to the offence of alleged theft. It suffices to conclude in this respect that the 2nd and 3rd Defendants put the law in motion as against the Plaintiff. **Whether the prosecution was instituted without reasonable or probable cause** 37. The Plaintiff is further obligated to demonstrate in evidence that his prosecution was initiated without any reasonable or probable cause. Reasonable and probable cause was defined in the case of **Kagane –vs- Attorney General & 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...** **…to constitute reasonable and probable cause the totality of 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 insofar 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.”** Clerk & Lindsell on Torts (12th edition) at paragraph 1712 states: **“What is reasonable and probable cause. As has been already seen, reasonable and probable cause depends upon the information and belief of the defendant. There must be a reasonable cause in such as would operate on the mind of the party making the charge otherwise there is no probable cause for him: I cannot say that the defendant acted in probable cause, if the state of facts was such as to leave no effect on his mind.”** **38.** Looking at the evidence adduced and the testimonies of the witnesses, it is clear that the matter was reported by the Defendants on reasonable or probable believe that the Plaintiff committed an offence known in law being alleged theft of a motor vehicle belonging to their sister. This is a reasonable and probable cause. The Plaintiff has failed to lead any evidence to demonstrate that his arrest and prosecution was initiated without any reasonable or probable cause. **Whether the prosecution was intuited by malice.** 39. It is now well settled principle of law that a mere termination of a criminal case in favour of the accused person does not necessarily means that the Plaintiff will succeed in a suit for malicious prosecution. In **James Karuga Kiiru –vs- Joseph Mwamburi and 3 Others (2001) KECA 354 (KLR)** the Court of Appeal held:- **“To prosecute a person is not prima facie tortuous, but to do so dishonestly or unreasonably is. And the burden of proving that the prosecutor did not act honestly or reasonably lies on the person prosecuted.”** **40.** Similarly, 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.”** 41. Further, in **Susan Mutheu Muia v Joseph Makau Mutua (2018) eKLR, Civil Appeal 128 of 2017** held that; **“Even if a complainant in a criminal case makes a malicious complaint, that malice cannot automatically be transferred to the prosecutor unless it is proved that there was collusion between the complainant and the prosecutor in bringing up the prosecution. The trial magistrate made a clear finding that there was no collusion between the complainant and the police who were the prosecutors. He absolved the police of the issue of malice. In the circumstances he could not make a finding that the prosecution was actuated by malice.”** 42. I have looked at the evidence tendered and the testimonies of the witnesses who testified in this matter, I am unable to see any shred of evidence that points to the claim that the Plaintiff’s arrest and prosecution was actuated by malice. The Plaintiff has therefore failed to demonstrate that his prosecution was actuated by malice. **Whether the Criminal Case was terminated in his favour** In Paramount Bank Limited v Vaqvi Syed Qamara & another [2017] eKLR where (Makhandia, Ouko and MÍnoti JJA), stated:“The favourable termination requirement of criminal charges may be satisfied in various ways depending on how the proceedings are concluded in favour of the accused person. For instance, by acquittal, a discharge or a withdrawal.Courts in this jurisdiction have relied, over the years on the following passage from the case of Egbema v West Nile Administration [1972] EA 60 for the foregoing proposition;“For the purposes proof that the criminal proceedings have been determined in the appellant’s favour it is enough that the criminal proceedings have been terminated without being brought to a formal end. The fact that no fresh prosecution has been brought, although five years have elapsed since the appellant was discharged, must be considered equivalent to an acquittal, so as to entitle an appellant to bring a suit for malicious prosecution...”Although the withdrawal of a charge under Section 87 is technically not on acquittal and does not operate as a bar to subsequent proceedings against an accused person on account of the same facts, guided by the foregoing holding, we note in this appeal that five years after the charges were withdrawn on 30th July, 2012, ostensibly pending the arrest of Lawrence Atieno, no fresh charges have been preferred against the 1ST Respondent. There was no indication whether Lawrence Atieno was ever arrested and charged. The discharge of the respondent, therefore amounted to a termination of the prosecution in his favour. In this case, the matter was withdrawn in favour of the Plaintiff, failure to demonstrate that the criminal matter was actuated by malice renders this element irrelevant. Looking at the totality of the evidence adduced in the matter, it is clear that the Plaintiff has failed to demonstrate that his arrest and prosecution was actuated by malice and consequently his claim for damages for malicious prosecution must fail. **CONCLUSION** In conclusion therefore the Plaintiff’s suit is dismissed with costs. Orders accordingly. **Judgment dated, signed and delivered virtually through Microsoft Teams on this 25th Day of June, 2026.** **E. N. MAINA** **JUDGE** **In the presence of:** Mr. Mwenda for Kamau Kuria SC for the Plaintiff Mr. Ngumbi for 1st Defendant Mr. Kilonzi for Nzei for 4th Defendant. Court Assistant/Interpreter – Catherine