https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9660

Kirika (Trading as Quan Systems) v Family Bank & another (Civil Case E120 of 2023) [2026] KEHC 9660 (KLR) (Civ) (25 June 2026) (Judgment) Neutral citation: [2026] KEHC 9660 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Civil Civil Case E120 of 2023 SN Mutuku, J June 25, 2026 Between Jackson Migwi Kirika (Trading As Quan Systems) Plaintiff and Family Bank 1st Defendant The Hon Attorney General 2nd Defendant Judgment Background 1.Jackson Migwi Kirika (Trading as Quan Systems) (the Plaintiff) filed the present suit through a plaint dated 20.05.2023 and amended on 18.03.2024 (the Amended Plaint) seeking judgment against Family Bank and The Hon. Attorney General (the 1st and 2nd Defendants respectively) as follows:a.Special damages for:i.Loss of income in the sum of Kshs. 18,900,000/- andii.Legal costs in the sum of Kshs. 2,346,000/-iii.Interest on cash bail deposited in Court being Kshs. 356,912/-b.General and exemplary damages for malicious prosecution.c.Interest on (a) and (b) above at Court rates.d.Costs of this suit. 2.In his pleadings as shown in the Amended Plaint, the Plaintiff has stated that he was at all material times a customer of the 1st Defendant where he operated bank account number 06xxxxxx699 at the 1st Defendant’s KTDA Plaza Corporate Branch, Nairobi. That sometimes on or about 24.03.2015, the 1st Defendant without any justifiable or reasonable cause, falsely and maliciously lodged a complaint against him with the Police Banking Fraud Investigation Unit (the Fraud Unit) based in Nairobi, in respect of a sum of Kenya Shillings Four Million and Five Hundred Thousand (Kshs. 4,500,000/-) alleged to have been stollen by the Plaintiff from the 1st Defendant’s premises. 3.It was pleaded that, the Banking Fraud Unit undertook investigations on the matter, and subsequently preferred criminal charges against the Plaintiff and other persons not before the court. That, the Plaintiff was charged in court with the offence of stealing contrary to Section 268(1) as read with Section 275 of the Penal Code, in Milimani Criminal Case No. 535 of 2015 (the criminal case). 4.It is the Plaintiff’s averment that the criminal charges were preferred against him by the 2nd Defendant, notwithstanding the fact that his co-accused had admitted to the facts relating to the charges and statements by a witness and customer of the 1st Defendant respectively, regarding the Plaintiff’s innocence. That, the 1st Defendant admitted to the fact that no monies were lost in relation to the criminal matter and that he was ultimately acquitted under Section 210 of the Criminal Procedure Code (CPC). 5.The Plaintiff stated, further, that prior to his arraignment in court, he was arrested and detained at Kileleshwa Police Station where he was later released on a cash bail of Kshs. 500,000/- upon entry of his plea of ‘not guilty.’ He pleased that his arrest and prosecution were actuated by malice on the part of the Defendants, as particularized under paragraph 20 of the Amended Plaint. 6.The Plaintiff has pleaded that during pendency of the criminal case, the 1st Defendant proceeded to make false and defamatory statements against the Plaintiff and caused the same to be published in the Standard Newspaper dated 26.03.2015 and 17.05.2015. That as a consequence of the criminal proceedings against him, he suffered great prejudice, anguish and loss resulting from his inability to obtain the requisite Certificate of Good Conduct from the police needed for purposes of sustaining his procurement business and this as a result, he suffered loss of business and income for which he is claiming damages for loss of income during the intervening period, as pleaded under paragraph 19 of the Amended Plaint. The Defence 7.the 1st Defendant filed the statement of defence dated 8.09.2023 and amended on 21.03.2025 (the Amended Defence) in which it is stated that the Plaintiff was indeed its customer at all material times, operating the bank account particularized in the Amended Plaint. 8.The 1st Defendant has stated that while it is true that it lodged a complaint with the Fraud Unit, it did not do so maliciously or without reasonable cause. That there was reasonable and probable cause warranting the complaint and investigations into the events leading up to the Plaintiff’s arrest and that in lodging the said complaint, it was merely acting within its statutory and fiduciary mandate in ensuring the protection of funds held by its respective customers. 9.The 1st Defendant has stated that suspicions arose following the receipt of instructions in December, 2014, from a former employee of the 1st Defendant named Mary Wamaitha Muriu directing another customer of the 1st Defendant, Joel Mwaniki (the third party), to transfer funds to the tune of Kshs. 3,500,000/- from his account to that belonging to the Plaintiff. That subsequently, the third party received instructions to transfer an additional sum of Kshs. 1,000,000/- to the Plaintiff’s account sometime in May, 2015, giving a total sum of Kshs. 4,500,000/- that was remitted to the Plaintiff’s account. 10.The 1st Defendant has averred that the third party reported the matter to the 1st Defendant’s security team, thereby prompting investigations which revealed that the unlawful transactions undertaken above contravened its internal processes and constituted a breach of duty on the part of Mary Wamaitha, who was ultimately summarily dismissed from employment. That following the culmination of the investigations, a decision was made to have the Plaintiff charged, which decision lay solely with the discretion of the Office of the Director of Public Prosecutions (ODPP). That save for lodging the complaint, the 1st Defendant had no role in the arrest, detention and prosecution of the Plaintiff and that the mere fact that the Plaintiff was acquitted in the criminal case does not constitute legal basis for bringing the claim for malicious prosecution against it. 11.The 1st Defendant admitted to the publications referred to in the Amended Plaint but denied that the same was malicious or defamatory in nature and that, furthermore, the impugned publications were made several years prior to filing of the present suit. 12.The 1st Defendant has further denied the particulars of malice and loss and damage attributed to it and averred that the Plaintiff is not, at all, entitled to the reliefs sought in the Amended Plaint and therefore the Plaintiff’s suit ought to be dismissed with costs to the 1st Defendant. 13.The 2nd Defendant filed a statement of defence dated 29.08.2023 and amended on 8.04.2024 (the 2nd Defendant’s Amended Defence). He has stated that the investigations, arrest and prosecution of the Plaintiff were driven by reasonable and probable cause and that, the investigations and arrest undertaken against the Plaintiff were in line with the mandate and statutory duties of the Banking Fraud Unit, the particulars of which are laid out under paragraph 4 of the 2nd Defendant’s Amended Defence. 14.The 2nd Defendant has denied any attribution on the particulars of malice, loss and damage allegedly suffered by the Plaintiff and has averred that the criminal proceedings lodged against the Plaintiff were justified and were the result of the Plaintiff’s own actions. 15.Similarly, the 2nd Defendant has denied the particulars of the reliefs sought in the Amended Plaint and sought dismissal of the Plaint with costs to the 2nd Defendant. Oral Evidence 16.The Plaintiff testified as PW1. He adopted his signed witness statement dated 20.05.2023 as his evidence-in-chief and produced his list and bundle of documents of like date as Pex.1 and Pex.2 respectively. I have read the Plaintiff’s witness statement and noted its contents. 17.The Plaintiff testified that at the time of the incident, he was engaged in business where he supplied stationery and related items to various government agencies. That he received a text alert on his phone that a sum of Kshs. 4,500,000/- had been deposited into his account, from a person unknown to him and without a prior request on his part. That he visited the 1st Defendant to inquire the origin and nature of the deposit transaction. That he was directed to see Mary Wamaitha, a credit officer with the 1st Defendant, who instructed him to withdraw the said funds and hand the same to her, which he did. He denied utilizing the deposited funds and stated that he had no business or financial dealings with any employee of the 1st Defendant. That he was not interrogated by the 1st Defendant employees on the matter. That, nevertheless, he was instructed to proceed to the Banking Fraud Unit where he recorded a statement, only to discover that he had been implicated. 18.He testified that he was arrested and arraignment in court on criminal charges related to matter. That the 1st Defendant caused his photo and name to be published in the Standard Newspaper, accusing him of committing banking fraud. That, despite the fact that he was eventually acquitted of the criminal charges, the Plaintiff lost various business opportunities as clients were hesitant to give him business thereafter. That he was unable to continue with his business operations between March 2015 and his acquittal in 2018, thereby causing him to suffer loss of business. 19.In cross-examination, the Plaintiff stated that prior to the incident, he had received a Local Purchase Order (LPO) for the tender to supply of stationery to a government institution. That at the time, he did not have the required funds amounting to Kshs. 1,2500,000/- to finance the said tender. That he approached the 1st Defendant at its premises at KTDA Plaza Branch to obtain financing. That he met Mary Wamaitha, a the credit officer with the 1st Defendant at the time, who advised him to obtain security for the intended loan from a fellow customer of the 1st Defendant. That the Plaintiff was therefore introduced to one Deborah Karanja, who agreed to advance the funds he required, at an interest rate of 20%. That Deborah therefore guaranteed him a sum of Kshs. 3,000,000/- and which sum was eventually deposited into his account. 20.It is the Plaintiff’s testimony that during the intervening period, he was able to obtain a separate soft loan from a friend. That nevertheless, a sum of Kshs. 4,500,000/- was further deposited into his account and he later came to learn that the deposit transaction was made by the third party, who is unknown to him. That he withdrew the deposited amount and handed it to Mary Wamaitha upon the latter’s advice, with the understanding that the same would be refunded to the third party. 21.He admitted to not calling Mary Wamaitha as his witness and testified on cross-examination that following his arrest on 25.03.2015, the impugned defamatory publications were made on 26.03.2015. He admitted to not filing the defamation case within one (1) year. 22.In further cross-examination, the Plaintiff stated that he did not have any evidence to show that he was unable to obtain government tenders or related work following his arrest and prosecution and that though he did not have bank statements indicating his monthly earnings, he had audited accounts which show the extent of his earnings and which constitute part of his exhibits. 23.The Plaintiff also stated that the costs incurred in legal and related fees during the course of the criminal case was given to him by friends and was not personally incurred by him. That nonetheless, he is yet to refund the said monies. 24.In further cross-examination, the Plaintiff testified that the investigations into the incident followed a formal report to the police and that the said investigations did not involve the police attached to the Banking Fraud Unit. That the Banking Fraud Unit did not act wrongly in taking part in the initial investigations of fraud. That he is also aware that funds were fraudulently deposited into his account but that the same were ultimately refunded to their rightful owner, namely the third party. 25.Gerald Muchangi Njagi who was PW2, testified that he was responsible for preparing the Plaintiff’s financial accounts from the year 2011 to date, and opted to rely on its contents as his evidence-in-chief. On cross-examination, the witness testified that he is an accountant by profession and that he had worked with the Plaintiff since the year 2011. He admitted that the statements produced in court did not contain the requisite signatures. 26.Mercy Wanjiku Ndaita (DW1) testified as 1st Defendant’s witness. She adopted her witness statement dated 2.04.2025 as her evidence-in-chief, and produced the 1st Defendant’s list and bundle of documents dated 25.08.2024 and 2.04.2025 as D. Exhibits 1 and 2 respectively. She testified that she works for the 1st Defendant as a Branch Manager. 27.In cross-examination, the witness testified that she has worked for the 1st Defendant since 2013 and that she never directly dealt with the Plaintiff or his account. That the 1st Defendant received a complaint on 19.03.2015 from the third party, claiming that he had received instructions from Mary Wamaitha on 29.12.2024 to transfer or withdraw funds from his account to another account, namely the Plaintiff’s. That he did so, though erroneously. 28.DW1 stated that the Plaintiff is at fault for withdrawing the transferred amount and handing it to Mary Wamaitha, rather than requesting the 1st Defendant to reverse the transaction. That consequently, Mary was summarily dismissed from the 1st Defendant’s employment, on grounds of acting fraudulently and misadvising a customer. That the funds were ultimately refunded to the third party but not through the Plaintiff and that she did not participate in the criminal proceedings against the Plaintiff. 29.She stated in further cross-examination, that both Mary Wamaitha and the Plaintiff were implicated in relation to the fraudulent transaction. That, Mary, being a Credit Officer, had access to customers’ account details and that the matter was investigated by the Banking Fraud Unit following a report by the 1st Defendant. 30.In re-examination, she stated that had the complaint not been made by the third party, the 1st Defendant would not have had knowledge of the transaction. 31.Moses Kosgey Kipkorir, the Security and Investigative Manager of the 1st Defendant, testified as DW2. He adopted his witness statement dated 25.08.2014 as his evidence in chief. He testified that the trail of evidence shows that upon receipt of the material funds, the Plaintiff withdrew them at intervals, but that he never sought a reversal of the transaction with the 1st Defendant. That, the third party raised issue with the 1st Defendant regarding the suspicious transaction, thereby resulting in the investigations and subsequent arrest and prosecution of the Plaintiff. 32.The witness further testified that the third party’s concerns were against the staff of the 1st Defendant and not necessarily the Plaintiff personally. That the third party did not accuse the Plaintiff of fraud or deceit, according to his statement which constitutes part of the 1st Defendant’s bundle of documents. 33.It is his testimony that he is aware of the criminal proceedings and outcome thereof. That his colleague reported the matter to the Banking Fraud Unit, following which the Plaintiff and Mary Wamaitha were implicated and that 34.In re-examination, the witness briefly stated that following a complaint regarding a particular account, it is common practice for the 1st Defendant to investigate both the holder of the account and the nature of the transaction in question, marking the close of the 1st Defendant’s case. 35.Josiah Njue Gichobi, a retired Senrior Sergeant of police, testified for the 2nd Defendant, as DW3. He adopted his witness statement dated 3.11.2024 and produced Charge Sheet and covering report as well as bundle of documents and crime incident report as the 2nd Defendant’s Exhibits 1, 2, 3 and 4 respectively. He testified that, at the material time, he was working at the Banking Fraud Unit and that he participated in the investigations into the matter concerning the transfer of Kshs. 4,500,000/- from an account belonging to the third party, to the Plaintiff’s account; both accounts being held with the 1st Defendant. 36.He testified that from his investigations, he found out from the third party that the instructions to make the above transfer emanated from Mary Wamaitha and that no loan application was tendered to support the same. The witness stated that he was able to recover the note written by Mary, directing the third party to transfer the material funds. That the said note was subjected to forensic examination which yielded a positive result. That consequently, it was decided that the Plaintiff be charged in a criminal matter in relation to that transaction. 37.He testified that the instructions to charge the Plaintiff were given by his seniors and that he did not make a personal decision to prefer charges against him. That according to his investigations, the Plaintiff had not followed proper procedure upon receiving the material funds into his account but acted in ignorance and without exercising due diligence on his part and that he found the note written by Mary Wamaitha as constituting fraud. 38.According to the witness, the Plaintiff ought not to have complied with the instructions given by Mary, that he withdraw the material funds and hand them to her. That he instead ought to have informed the 1st Defendant. That the material funds were refunded to the third party. Parties’ Submissions 39.The Plaintiff’s submissions are anchored on the case of Mbowa v East Mengo District Administration (1972) EA 352, where the elements for malicious prosecution have been outlined. On whether the complaint and prosecution of the Plaintiff was without malicious and unjustifiable, it was submitted that the evidence tendered shows that the transfer of the material funds emanated from instructions given by Mary Wamaitha to the third party. That the Plaintiff had no part to play in the said transaction and that as soon as he became aware of it, he visited the 1st Defendant to find out about the issue whereupon he was directed by Mary Wamaithat to withdraw the funds and hand over the same her. That he did not retain the funds or utilize them for personal gain and that he was found not guilty in the criminal case and acquitted. 40.He submitted that both the third party and Mary, by way of their respective statements, confirmed his non-participation in the funds transfer, and yet the 2nd Defendant went on to arrest and charge him with a criminal offence. That similarly, the 1st Defendant’s action of lodging a complaint against the Plaintiff, notwithstanding the position taken by the third party, was vindictive in nature and that flowing from the foregoing, it can only be deduced that there was malice on the part of the Defendants herein. 41.The Plaintiff relied on the case of James Karuga Kiiru v Joseph Mwamburi & 2 others [2001] KECA 354 (KLR) where the Court of Appeal held that:“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.” 42.It is the Plaintiff’s further submission that the third party clearly testified in the criminal case that he and the Plaintiff were previously unknown to one another and had no dealings between themselves. That, the third party had no issue, legal or otherwise, against the Plaintiff and that in the circumstances, there was no legal or reasonable basis to prefer criminal charges against the Plaintiff. 43.He submitted that sufficient evidence has been tendered to support the averments of loss suffered as a result of the malicious prosecution against him by the Defendants herein. That in the circumstances, he is entitled to the various reliefs sought in the Amended Plaint. 44.The 1st Defendant relied on the case of Vastu Company Limited v Mwangi [2022] KEHC 3006 (KLR), in support of his submissions that much as the Plaintiff was acquitted in the criminal case, his claim for malicious prosecution has not been proved to the required standard and cannot therefore be sustained against the 1st Defendant. 45.The 1st Defendant further relied on the case of Central Bank of Kenya v Ndege & another [2026] KEHC 1844 (KLR) where the court laid out the elements that ought to be proved in order for a claim founded on malicious prosecution to succeed. It was submitted that the element of malice has not been established against it. That, the 1st Defendant, being a financial institution, acted within its legal duty by reporting the suspected transaction to the Banking Fraud Unit, following the complaint lodged by the third party concerning the funds in his account. That independent investigations were carried out into the incident, before the decision to prefer criminal charges against the Plaintiff was arrived at. That in any event, the 1st Defendant merely reported the matter to the police but was not responsible for the arrest and prosecution of the Plaintiff since the powers to prosecute lie with the ODPP and that it is not in dispute that the Plaintiff received the material funds and yet no evidence was tendered to demonstrate that he refunded the same to the third party. 46.It is the 1st Defendant’s submission that, the element of reasonable and probable cause has been demonstrated, with reliance being placed on, inter alia, the case of Mbuvi v Astral Aviation Company Limited & 2 others [2023] KEHC 21086 (KLR) where the court acknowledged that:“...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…” 47.It was submitted that no evidence has been tendered to demonstrate that the 1st Defendant acted maliciously towards the Plaintiff through abusing or influencing the criminal case in any manner and that, both the Plaintiff and Mary Wamaitha were prosecuted in the criminal case. The 1st Defendant has urged this court to be guided by the earlier referenced case of Vastu Company Limited v Mwangi in which the court held that allegations of malice and ill-will must be supported by evidence by way of a plaintiff proving that the relevant criminal proceedings were either manipulated or abused, or that the criminal process was selective in nature. 48.The 1st Defendant contended that the claim for defamation brought by the Plaintiff is fatally defective for being both time-barred and for the Plaintiff’s failure to sue the relevant media company and that, the Plaintiff did not set out the particulars of defamation in his pleadings or establish the pertinent elements in ensuring the success of his claim for defamation. 49.On the issue of the reliefs sought, it is the 1st Defendant’s submission that the Plaintiff, having failed to prove any of the damages being sought, is not entitled to any award thereon. Moreover, regarding the audit report tendered, it is the 1st Defendant’s submission that the same cannot be relied upon in claiming damages since it was unsigned and was purportedly tendered by an unverified expert. The 1st Defendant relied on the decision in Mugo Mungai & 4 others v Official Receiver & Provisional Liguidator (Capital Finance Limited and Pioneer) & 2 others [2019] KEHC 11476 (KLR) where the court declined to allow the production of an unsigned document as evidence, reasoning that the same lacked probative value. 50.The 1st Defendant urged this court to dismiss the Plaintiff’s suit with costs. 51.The 2nd Defendant also filed written submissions. Whilst citing the decision in George Masinde Murunga v Attorney-General [1979] KEHC 34 (KLR) where the court laid out the ingredients pertinent to a claim of this nature, the 2nd Defendant contended that while the criminal proceedings in question terminated in favour of the Plaintiff, the elements of absence of reasonable or probable cause and malice respectively, have not been established. 52.The 2nd Defendant has contended that the Banking Fraud Unit, being a specialized unit under the Directorate of Criminal Investigations (DCI), acted within its statutory mandate upon receiving a complaint relating to fraud, from the 1st Defendant. That it has not been demonstrated that the Banking Fraud Unit acted outside its mandate or that its decision was motivated by malice. 53.The 2nd Defendant cited the decision in Monari & another v Commissioner of Police & another; Abubakar & another (Interested Parties) [2012] KEHC 4595 (KLR) where it was held that the duty to investigate complaints rests with the police and that upon them preferring charges, the mandate shifts to the trial court to hear the matter and make a finding thereon. That as long as it is shown that the charges and prosecution were undertaken in a reasonable manner, the High Court will be hesitant to intervene and that the arrest and prosecution of the Plaintiff were instituted with reasonable and probable cause, as defined in the case of Kagane v AG (1969) EA 643 and therefore, the burden rests with the Plaintiff, to prove otherwise. 54.The 2nd Defendant has submitted that the Plaintiff is not entitled to the reliefs sought in the absence of any supporting evidence. That the Plaintiff has not proved his claim on special damages in line with the legal principle that special damages must both be specifically pleaded and strictly proved, as echoed by the Court of Appeal in the case of Hahn v Singh [1985] KECA 129 (KLR) as well as the case of Douglas Odhiambo Apel & another v Telkom Kenya Limited [2014] KECA 868 (KLR). The 2nd Defendant has urged this court to dismiss the Plaintiff’s case with costs. Analysis and determination 55.I have considered the pleadings filed and evidence tendered at the trial, as well as the rival submissions and authorities cited by the parties. I am aware that the 1st Defendant has raised the issue that the Plaintiff’s claim on defamation was brought outside the time allowed to file such a claim. However, upon my perusal of the record, I have noted that while the Plaintiff had initially founded his claim on both the torts of defamation and malicious prosecution, it is evident that by way of the amendments to his plaint, he opted to abandon the claim for defamation and reliefs sought in respect of that cause of action. It would appear that any subsequent reference made to the impugned publications is purely within the context of the claim for malicious prosecution and not necessarily in pursuit of a separate claim for defamation. 56.Moreover, the Plaintiff admitted to the court that the initial claim for defamation was brought outside the statutory timelines and there is nothing on the record to indicate that the said claim was being pursued at the trial stage. It is therefore not necessary to proceed with the determination of that issue. 57.To my mind, the following issues arise for determination:i.Whether the Plaintiff has made a case for malicious prosecution against the 1st and 2nd Defendants;ii.Whether the Plaintiff is entitled to the reliefs sought in the amended plaint. 58.On the first issue, I have considered the definition of the term “malicious prosecution” in the case of Stephen Gachau Githaiga & another v Attorney General [2015] eKLR, where the court in that case defined that term as follows:“Malicious prosecution is an action for damages brought by one against whom a civil suit or criminal proceeding has been unsuccessfully commenced without Probable Cause and for a purpose other than that of bringing the alleged offender to justice…Malicious prosecution is an intentional tort designed to provide redress for losses flowing from an unjustified prosecution.” 59.A party coming to court claiming malicious prosecution must establish the following elements, as articulated in the case of Kagane v Attorney General (1969) EA 643 as cited by the court in Kenya Power & Lighting Co Ltd v Maurice Otieno Odeyo & 2 others [2017] eKLR as hereunder:“a)The plaintiff must show that the prosecution was instituted by the defendant; or by someone for whose acts he is responsible;b)That the prosecution terminated in the plaintiff's favour;c)That the prosecution was instituted without reasonable and probable cause; andd)That the prosecution was actuated by malice.” 60.For the Plaintiff to succeed in this case and obtain the reliefs he is seeking from this court, he must establish the presence of the above ingredients collectively. 61.On whether the prosecution was instituted by the Defendants or any of them, the evidence shows that there is no dispute that the arrest and prosecution of the Plaintiff were instituted by the police and the ODPP, presently represented by the 2nd Defendant in these civil proceedings, who were acting on a report made by the 1st Defendant. The record shows that the Plaintiff and Mary Wamaitha, were charged with the offence of stealing contrary to Section 268(1) as read with Section 275 of the Penal Code, in the criminal case as shown in the copies of the charge sheet tendered in court in the respective parties’ bundle of documents. 62.On whether the prosecution terminated in the Plaintiff’s favour, I have considered the evidence tendered in court and perused the copy of the criminal court ruling delivered on 22.09.2022 tendered as part of the Plaintiff’s bundle of documents. It is evident that the criminal proceedings terminated in favour of the Plaintiff and his counterpart. Both were acquittal under Section 210 of the Criminal Procedure Code and therefore, it is not in dispute that this ingredient has been proved. 63.On whether the prosecution was instituted without reasonable and probable cause, I am alive to the fact that the burden of proving the absence of probable cause ultimately lies with the Plaintiff. In the case of Kagane v Attorney General case the court defineed what constitutes reasonable or probable cause, in the following manner:“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…” 64.From the evidence before the court, it is clear that the decision to arrest and charge the Plaintiff with the criminal offence was arrived at by the ODPP, following investigations undertaken by the Banking Fraud Unit after the 1st Defendant reported the fraudulent transfer of the funds from Joel Mwaniki’s account to that of the Plaintiff. The reason behind that action by the 1st Defendant to report the matter to the police was based on the complaint raised to the 1st Defendant by their customer, the third party. 65.The evidence on record touching on this matter is that the third party was approached by Mary Wamaitha, who instructed him to remit the sum of Kshs. 3,500,000/- from his account to the account belonging to the Plaintiff. From the background information provided in this matter, the third party and Mary were known to each other and had been for a number of years, thereby establishing a relationship between them. That, consequently, the third party effected the said transaction on 29.12.2014, as shown in the bank statement records and bank slips dated 29.12.2014 and 6.03.2015, tendered by the 1st Defendant. 66.The record further shows that the third party was again contacted by Mary and advised to withdraw a subsequent sum of Kshs. 1,000,000/- from his account and deposit the same in the Plaintiff’s account. That the third party complied by depositing the said sum on 6.03.2015. 67.Upon my careful examination of the pleadings and evidence on record, I have noted that the Plaintiff admitted to having communications with Mary Wamaitha at all material times and further admitted to having a total sum of Kshs. 4,500,000/-deposited in his account with the 1st Defendant. The evidence shows that upon receiving a text message alert in his phone that his account had been credited with the above amount, the Plaintiff told the court that he went to the 1st Defendant to find out where the money had come from. According to the evidence of the Plaintiff, he was instructed by Mary Wamaitha to withdraw that money and give it to Mary to return to the owner. 68.A prudent man would have declined that advice and insist that the 1st Defendant proceeds to reverse the transaction without involving him. There is no evidence to show that the money was given to Mary or refunded to the third party. None of the two, Mary and the third party testified on behalf of the Plaintiff. 69.From the foregoing, it is therefore apparent that the investigations undertaken by the Banking Fraud Unitm which resulted in the arrest and prosecution of the Plaintiff and his counterpart by the ODPP, presently represented by the 2nd Defendant, were prompted by the above turn of events. It is equally apparent that the 1st Defendant, save for making a report with the Banking Fraud Unit, did not have a part to play in the decision whether or not to charge the Plaintiff and his counterpart. This decision lay solely with the police and the ODPP. In my considered view, the 1st Defendant acted within its mandate as a financial institution, to report any suspicions of fraud or other crimes arising in its organization. The 2nd Defendant, through the ODPP, likewise acted within its mandate to prefer charges against the Plaintiff on a matter where investigations pointed to fraud. 70.From my study of the material on record and in particular the criminal proceedings instituted against the Plaintiff and his counterpart and tendered as part of the Plaintiff’s bundle, it is also apparent that following their arrest, the 2nd Defendant called a total of 4 prosecution witnesses, including a Security and Investigation Officer of the 1st Defendant and a Forensic Document Examiner based at the DCI Headquarters. From the totality of the evidence on record, I hold the view that that the arrest and prosecution of the Plaintiff was based on reasonable and probable cause. 71.On the aspect of the ingredient of malice, I have read Stephen Gachau Githaiga case, where the court in that case articulated that an acquittal in a criminal case does not automatically connote malice and that malice can be determined from the circumstances of the case. 72.I have examined the pleadings and evidence on record, I find no evidence demonstrating that the prosecution of the Plaintiff was either selective or targeted in nature, or that it was actuated by malice. I find no inference of malice in the investigation statements, various correspondences and nature of the criminal proceedings on record. 73.In view of all the foregoing circumstances, it is my finding that the Plaintiff has failed to prove his claim for malicious prosecution to the required standard and therefore, that claim cannot be sustained. 74.On whether the Plaintiff is entitled to the reliefs sought, and in view of my finding above, that the Plaintiff has not proved malicious prosecution, I would hasten to answer this issue in the negative. 75.Consequently, the Plaintiff’s claim fails and is hereby dismissed. Further, and after taking into account the circumstances of this case, I order that each party shall bear own costs. 76.It is so ordered. DATED, SIGNED AND DELIVERED THIS 25TH DAY OF JUNE 2026.S. N. MUTUKUJUDGE