https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12877

Kenya Ports Authority v Oruko & another (Civil Appeal E050 of 2025) [2026] KEHC 12877 (KLR) (14 August 2026) (Judgment) Neutral citation: [2026] KEHC 12877 (KLR) Republic of Kenya In the High Court at Mombasa Civil Appeal E050 of 2025 J Ngaah, J August 14, 2026 Between Kenya Ports Authority Appellant and Raphael Akuno Oruko 1st Respondent The Hon. Attorney General 2nd Respondent (Being an appeal from the judgment and decree of Hon. Akee, Principal Magistrate, delivered on 27 June 2024 in Mombasa Chief Magistrate’s Court Civil Case No. 219 of 2009) Judgment 1.This appeal arises from the judgment and decree of Hon. Akee, Principal Magistrate, delivered on 27 June 2024 in Mombasa Chief Magistrate’s Court Civil Case No. 219 of 2009. The appeal is brought pursuant to leave to appeal out of time granted on 26 February 2025 in Mombasa High Court Civil Miscellaneous Application No. E008 of 2025. 2.By a plaint dated 4 February 2009, the 1st respondent sued the appellant and the 2nd respondent, jointly and severally, for special damages of Kshs. 50,000/=; general damages for wrongful arrest, confinement and malicious prosecution; costs and interest. 3.The gravamen of the 1st respondent’s claim, as pleaded, was that on or about 30 March 2005, the appellant’s officers falsely, maliciously and without probable cause or justification reported to the Divisional Criminal Investigations Officer, Port Police Station, that the 1st respondent had stolen a forty-foot container, No. PCIU 9822657, said to have contained 500 pieces of assorted electronic items valued at Kshs. 1,437,149.90. It was pleaded that on the strength of that report, the 1st respondent was arrested by police officers from Port Police Station on 30 March 2005 and detained until 1 April 2005 when he was arraigned and charged with the offence of stealing contrary to section 275 of the Penal Code, cap. 63, in Mombasa Chief Magistrate’s Court Criminal Case No. 1139 of 2005, Republic versus Raphael Akuno Oruko & Another. The 1st respondent’s complaint against the appellant was, in essence, that it gave the police false, unfounded and baseless information; his complaint against the police, for whose actions the 2nd respondent was sued, was that they failed to conduct any proper investigation into the appellant’s complaint and charged him when they knew that he was innocent. 4.The criminal case terminated in the 1st respondent’s favour. By a ruling delivered on 1 April 2008, he was acquitted under section 210 of the Criminal Procedure Code, cap. 75, the trial court having found that no case had been made out against him sufficiently to require him to be placed on his defence. In acquitting the 1st respondent, the criminal court made the following observations concerning the investigating officer, who had testified as the seventh prosecution witness:“PW7 was the Investigating Officer[;] to say the least his evidence was bogus. He had no idea about the case he was testifying about. He agreed that the people who wanted to steal the container were arrested and they were not the ones in court… then… on what basis did he charge the accused?” 5.It is on the strength of this acquittal that the 1st respondent instituted the suit in the subordinate court. The appellant entered appearance and filed a statement of defence dated 24 February 2009 in which it denied liability. The 2nd respondent, though served, filed no defence. At the hearing, the 1st respondent testified in support of his claim and produced, among other documents, the charge sheet and the proceedings and ruling in the criminal case. Neither the appellant nor the 2nd respondent called any evidence. 6.In the judgment which has given rise to this appeal, the learned magistrate held as follows:“In the particular matter, it is not in dispute that the Plaintiff was maliciously prosecuted, therefore the Plaintiff is awarded. Judgement entered against the Defendants jointly for:- Special damages – Kshs. 50,000.00 as proved. General damages of Kshs. 500,000.00 for wrongful arrest and detention.” 7.The 1st respondent was also awarded costs and interest. The appellant was aggrieved by this decision, hence the instant appeal. In its memorandum of appeal dated 26 February 2025, the appellant has raised nine grounds of appeal which, compressed, fault the learned magistrate for: holding the appellant liable for malicious prosecution solely on account of the appellant having reported the theft, or attempted theft, of container No. PCIU 9822657 at its premises to the police, who independently investigated the matter leading to the arrest and prosecution of the 1st respondent; failing to appreciate that the investigation, arrest and prosecution were not conducted under the control or direction of the appellant; failing to appreciate that the appellant, like any other person, has a duty to report a suspected crime and that such a report does not, by itself, amount to malicious prosecution; finding for the 1st respondent when there was no evidence of malice and when the claim did not meet the threshold of the tort of malicious prosecution; awarding general damages of Kshs. 500,000/= which were said to be inordinately high; awarding special damages of Kshs. 50,000/= said to be unproven; and awarding interest from the date of institution of the suit without basis. The appellant has prayed that the appeal be allowed, the judgment of the subordinate court be set aside and the 1st respondent’s suit against it be dismissed with costs. 8.The appeal was canvassed by way of written submissions. The appellant, in its submissions dated 31 March 2026, elected to argue all the grounds together. Relying on Kagane & Others versus Attorney-General & Another [1969] EA 643, the appellant set out the four elements of the tort of malicious prosecution and the test of reasonable and probable cause, namely, an honest belief in the guilt of the accused based upon reasonable grounds which would lead an 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. Counsel also invoked Clerk & Lindsell on Torts on what constitutes reasonable and probable cause. 9.It was the appellant’s case that the evidence tendered in the criminal proceedings, which the 1st respondent himself placed before the subordinate court, demonstrated that there was, in fact, an attempted theft of a known container at the appellant’s premises; that the persons found committing the offence were apprehended and handed over to the police; that the evidence of the second prosecution witness in the criminal case showed that the persons arrested were not the persons eventually charged; and that the sixth prosecution witness, a clearing agent who was to clear the container for transit to Uganda, found the container missing, it having been loaded onto motor vehicle registration number KAT 548K. In those circumstances, it was submitted, the appellant had probable cause to lodge a report with the police, whose duty it then was to investigate the complaint and take appropriate action. Counsel relied on Samson John Nderitu versus Attorney General [2010] KEHC 3039 (KLR) (Nambuye J, as she then was) for the proposition that before an accused person is arraigned, the prosecuting authority ordinarily carries out investigations, records statements and analyses the facts to determine whether an offence is disclosed; and on Njuca Consolidated Company Ltd versus George Otieno, High Court Civil Appeal No. 99 of 2019 (Nyakundi J) on the independence of the prosecutorial mandate. Counsel further relied on Susan Mutheu Muia versus Joseph Makau Mutua [2018] eKLR for the proposition that even a malicious complaint does not transfer malice to the prosecutor unless collusion between the complainant and the prosecutor is proved; on Nzoia Sugar Company Limited versus Fungututi [1988] KLR 399 for the propositions that an acquittal, per se, is not a sufficient basis for grounding a suit for malicious prosecution and that the mental element of ill will cannot be found in an artificial person unless there is evidence of spite in one of its servants attributable to it; and on Mbowa versus East Mengo District Administration [1972] EA 352 for the proposition that the four elements of the tort must unite for the cause of action to be established. 10.The 1st respondent, in his submissions dated 21 April 2026, relied on Stephen Gachau Githaiga & Another versus Attorney General [2015] eKLR (Mativo J, as he then was), citing the Supreme Court of Canada in Nelles versus Ontario, for the four elements of the tort. On the first element, he submitted that the charge sheet named the appellant as the complainant and that the appellant and the 2nd respondent were, therefore, the active parties instrumental in setting the law in motion against him. On the second element, he pointed to his acquittal under section 210 of the Criminal Procedure Code. On the third element, he submitted that there was no reasonable and probable cause because the prosecution’s own witnesses confirmed that the individuals initially arrested in connection with the attempted theft of the container were released by the investigating officer and were not the persons brought before the court, and that no evidence whatsoever linked him to the alleged theft. On the fourth element, he submitted that malice was to be inferred from the fact that the appellant, well aware that he was not among the persons arrested at its premises, nonetheless acquiesced in and supported his prosecution and withheld that material fact for a period of two years, eleven months and sixteen days, until the criminal court rendered its decision. 11.The 1st respondent laid considerable emphasis on the fact that neither the appellant nor the 2nd respondent called any evidence at the trial, so that his evidence stood uncontroverted and unchallenged. For this, he relied on Interchemie E.A. Limited versus Nakuru Veterinary Centre Limited (Mbaluto J), United Millers Limited versus Mukhuya (Civil Appeal 25 of 2020) [2023] KEHC 23282 (KLR) and Kenya Akiba Micro Financing Limited versus Ezekiel Chebii & 14 Others [2012] eKLR, to the effect that where evidence is not challenged, the standard of proof on a balance of probabilities is attained. On quantum, he submitted that an award of damages is a matter of judicial discretion which the appellant had not shown to have been wrongly exercised, and urged that the appeal be dismissed with costs. 12.This being a first appeal, this court is under a duty to re-evaluate, re-assess and re-analyse the evidence on record and reach its own independent conclusions, bearing in mind, and giving allowance for, the fact that it neither saw nor heard the witnesses as they testified. See Selle & Another versus Associated Motor Boat Company Ltd & Others [1968] EA 123 and Abok James Odera t/a A.J. Odera & Associates versus John Patrick Machira t/a Machira & Co. Advocates [2013] eKLR. 13.The ingredients of the tort of malicious prosecution are not in doubt and, indeed, both parties are agreed on them. They are stated in Clerk & Lindsell on Torts, 16th ed. (1989), p. 1042, para. 19-05 as follows:“In action of malicious prosecution, the plaintiff must show first that he was prosecuted by the defendant, that is to say, that the law was set in motion against him on a criminal charge; secondly, that the prosecution was determined in his favour; thirdly, that it was without reasonable and probable cause; fourthly, that it was malicious.” 14.The same elements were adopted in this jurisdiction in Kagane & Others versus Attorney-General & Another (supra) and by the East African Court of Appeal in Mbowa versus East Mengo District Administration (supra), where it was emphasised that the four requirements must unite; if the plaintiff fails to prove any one of them, his action fails. The onus of proving every one of these ingredients rests on the plaintiff. As the Court of Appeal put it in James Karuga Kiiru versus Joseph Mwamburi & 2 Others, Nairobi Civil Appeal No. 171 of 2000; [2001] eKLR, to prosecute a person is not prima facie tortious, but to do so dishonestly or unreasonably is; and the onus of proving that the prosecutor did not act honestly or reasonably lies on the person prosecuted. 15.Before turning to the elements of the tort, I must make a preliminary observation on the manner in which the learned magistrate approached the case. The learned magistrate proceeded on the footing that it was “not in dispute that the Plaintiff was maliciously prosecuted”. With respect, that could not have been correct. The appellant had filed a defence in which liability was expressly denied. What could properly be said not to have been in dispute were the primary facts: that the 1st respondent was arrested, charged and eventually acquitted. But whether the prosecution was instituted by the appellant; whether it was instituted without reasonable and probable cause; and whether it was actuated by malice, were live and contested questions of mixed law and fact which the learned magistrate was obliged to interrogate against the evidence and, more particularly, against each defendant separately. The judgment contains no such analysis. It does not identify the capacity in which the appellant, as distinct from the 2nd respondent, was held liable; and, although the finding made was one of malicious prosecution, the general damages were awarded “for wrongful arrest and detention”, torts which, on the 1st respondent’s own pleading and evidence, were committed, if at all, by police officers and not by the appellant. 16.The 1st respondent’s answer to this criticism is that his evidence was uncontroverted because the appellant and the 2nd respondent called no witnesses. The authorities he cited correctly state that where evidence is unchallenged, it may more readily be acted upon. But the failure of a defendant to call evidence does not relieve a plaintiff of the burden of proof; it only renders that burden easier to discharge. In Karugi & Another versus Kabiya & 3 Others [1987] KLR 347, the Court of Appeal held that the burden on a plaintiff to prove his case remains the same throughout the case even though that burden may become easier to discharge where the matter is not validly defended, and that the burden of proof is in no way lessened because the case is heard by way of formal proof. That is also the effect of sections 107, 108 and 109 of the Evidence Act, cap. 80. Uncontroverted evidence relieves the plaintiff of contest; it does not relieve him of proof. More importantly, unchallenged evidence cannot supply an element which that evidence does not establish. The authorities relied upon by the 1st respondent concerned unrebutted proof of primary facts, such as the occurrence of an accident. They are no authority for the proposition that conclusions of law, such as that a particular defendant was the prosecutor for purposes of the tort, or that a prosecution was actuated by malice, are established by the mere silence of the defendant. 17.The first, and in my view decisive, question as against the appellant is whether the appellant prosecuted, or is deemed in law to have prosecuted, the 1st respondent; in the language of Stephen Gachau Githaiga (supra), on which the 1st respondent himself relies, whether the appellant was “actively instrumental in setting the law in motion” against him, for it is only such a party that may be held accountable for any damage that results. 18.I had occasion to consider this very question in Central Bank of Kenya versus Naaman Muguna Ndege & Another, Mombasa High Court Civil Appeal No. E267 of 2024 (judgment delivered on 20 February 2026). In that case, as in this one, a State corporation had made a report to the police of the suspected theft of its property; the police investigated; the complainant’s erstwhile employee was charged with stealing; he was acquitted under section 210 of the Criminal Procedure Code; he then sued the complainant and the Attorney General for malicious prosecution and succeeded before the subordinate court. In allowing the appeal, I held, among other things, as follows:“For purposes of this tort, a defendant who has procured the institution of criminal proceedings by the police is regarded as responsible in law for the initiation of the prosecution. The act of procuring the institution of criminal proceedings is itself a question of fact and, therefore, calls for close analysis of the particular circumstances. Where, for instance, the defendant has given false information to the police, that in itself is not a sufficient basis in law for treating the defendant as the prosecutor. The plaintiff must go further and prove that the defendant’s conduct must, at the very least, have influenced the police decision to prosecute.”“As a general rule, however, a prosecution will be considered to be brought when the charge is laid and by the person who lays it… Thus, the Director of Public Prosecutions will generally be treated as the prosecutor and no action for malicious prosecution will lie against the person on whose information the police or the Director of Public Prosecutions has acted… But in certain instances, the person who supplied the information to the police may be regarded as the prosecutor even though the charge was not laid by him. A person may be regarded as the prosecutor if, inter alia, he puts the police in possession of information which, for all practical purposes, compels the police to charge. For example, if he deliberately deceives the police by supplying false information in the absence of which the police would not have proceeded; or if he withholds information, the knowledge of which the police would not prosecute.” 19.In the same judgment I adopted the observations of Isaacs A.C.J. in Davis versus Gell (1924) 35 C.L.R. 275, 282 that, for the purposes of this form of action, the law looks beyond theory and regards the person in fact instrumental in prosecuting the accused as the real prosecutor; the substance, and not the legal form, must in all cases govern, so that while, on the one hand, a person giving information to the police is not necessarily the prosecutor, on the other, the mere fact that the police conduct the prosecution does not exclude him from that position. I also adopted the American Law Institute, Restatement of the Law, Torts, 2d (1977), section 653, to the effect that:“When a private person gives to a prosecuting officer information that he believes to be true, and the officer in the exercise of his uncontrolled discretion initiates criminal proceedings based upon that information, the informer is not liable… even though the information proves to be false and his belief was one that a reasonable man would not entertain. The exercise of the officer’s discretion makes the initiation of the prosecution his own… In order to charge a private person with responsibility for the initiation of proceedings by a public official, it must therefore appear that his desire to have the proceedings initiated, expressed by direction, request or pressure of any kind, was the determining factor in the official’s decision to commence the prosecution, or that the information furnished by him upon which the official acted was known to be false.” 20.The prosecution of the 1st respondent was commenced in 2005, before the promulgation of the Constitution of Kenya, 2010, at a time when the State’s powers of prosecution were vested in the Attorney General under section 26 of the repealed Constitution and were, by dint of section 26(8) thereof, exercisable independently and without the direction or control of any other person or authority. The position is no different under the current constitutional dispensation: by article 157 of the Constitution and sections 5 and 6 of the Office of the Director of Public Prosecutions Act, cap. 6B, the Director of Public Prosecutions exercises State powers of prosecution independently, requires no person’s consent to commence criminal proceedings, and is subject only to the Constitution and the law. Whichever constitutional regime one has in view, the principle is constant: the decision whether to arrest, and the decision whether to charge, are decisions of the State’s investigative and prosecutorial organs, made in the exercise of their own independent discretion. It follows that if a complainant does not go beyond giving what he believes to be correct information to the police, and the police, without interference on his part, think fit to prosecute, it would be improper to make the complainant responsible in damages for the failure of the prosecution. 21.Applying these principles to the evidence on record, the starting point is that there is no doubt at all that a crime, or at the very least an attempted crime, had been committed at the appellant’s premises. The 1st respondent’s own documentary evidence, being the proceedings in the criminal case, established that container No. PCIU 9822657, which the sixth prosecution witness was to clear for transit to Uganda, went missing from its bay, having been loaded onto motor vehicle registration number KAT 548K; and that persons found in the course of that enterprise were apprehended at the appellant’s premises and handed over to the police. A complainant confronted with those facts does not merely have reasonable and probable cause to make a report to the police; he has, in my view, a civic duty to do so. The courts have consistently declined to penalise the mere act of reporting a suspected crime. In Emily Nduta Kiregi versus Monica Muthoni Kanyora [2007] eKLR, the Court of Appeal held that a complainant is not liable for the tort of malicious prosecution unless, after independent investigations, it is established that the report was false and malicious. 22.The next question is whether the appellant went beyond the making of that report. Here, the 1st respondent’s case runs into an insuperable evidential difficulty. Although the plaint alleged that the appellant’s officers reported that the 1st respondent had stolen the container, there was no evidence before the subordinate court that the appellant’s report named or identified the 1st respondent at all; none that the appellant supplied to the police any information concerning the 1st respondent, let alone information known by it to be false; none that the appellant arrested him or caused or directed his arrest; and none that the appellant, by direction, request or pressure of any kind, procured the decision to charge him. On the contrary, the criminal record which the 1st respondent produced shows that the police arrested, at the scene, persons other than the 1st respondent; that those persons were later released by the investigating officer; and that it was the investigating officer who thereafter caused the 1st respondent to be charged, upon a basis which even the criminal court was unable to discern and on evidence which that court described, in terms, as “bogus”. Whatever else that state of affairs establishes, it establishes that the selection of the 1st respondent for prosecution was the act of the police, and of the police alone. 23.The 1st respondent’s reliance on the charge sheet, which names the appellant as the complainant, does not advance his case. A charge sheet will invariably record the name of the complainant, for that is the person at whose instance the criminal justice process was triggered; but the label “complainant” records only the source of the initial report. It does not of itself constitute the person so named the prosecutor in law. As Isaacs A.C.J. observed in Davis versus Gell (supra), it is the substance and not the legal form that governs. The substance here is that the report was of a true occurrence; the investigation, the arrests, the release of the actual suspects and the charging of the 1st respondent were all acts of the police in the exercise of their own discretion, however lamentably that discretion was exercised. 24.What of malice? The starting point is that an acquittal, per se, is not a sufficient basis for grounding a suit for malicious prosecution. As the Court of Appeal held in Nzoia Sugar Company Limited versus Fungututi (supra):“Acquittal per se on a criminal charge is not sufficient basis for grounding a suit for malicious prosecution, as 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.” 25.The appellant is a statutory corporation. No servant of the appellant was identified in the evidence as having harboured, let alone acted upon, any spite or ill will towards the 1st respondent. Indeed, the 1st respondent’s evidence disclosed no prior dealing, grievance or relationship between himself and the appellant or any of its officers from which an improper motive could even be inferred. 26.The 1st respondent’s principal submission on malice was that the appellant, knowing that he was not among the persons arrested at its premises, acquiesced in his prosecution and “withheld” that material fact for two years, eleven months and sixteen days. The submission is attractive at first blush but it does not survive scrutiny, for at least three reasons. First, there was no evidence that the appellant knew, at the time the 1st respondent was charged or at any time before the criminal trial, whom the police had elected to charge, or that the persons charged were not the persons who had been arrested. Knowledge is a fact to be proved, not presumed; and the 1st respondent, on whom the burden lay, proved none. Secondly, far from concealment, the record shows that it was through the testimony of the prosecution’s own witnesses at the criminal trial, including witnesses drawn from the events at the appellant’s premises, that the disconnect between the persons arrested and the persons charged came to light. A complainant bent on concealing that fact would hardly have furnished the very testimony that exposed it. Thirdly, a complainant is under no legal duty to superintend a prosecution once it is commenced, or to move the prosecuting authority for the discharge of an accused person. The duty to keep a charge under continuing review lies with the prosecuting authority, in whom the Constitution, both repealed and current, vests independent prosecutorial discretion. The failure identified by the criminal court was, in terms, the failure of the investigating officer. That is a failure of the State’s machinery for which the 2nd respondent, and not the appellant, was answerable in the suit. 27.It remains for me to consider whether my decision in Central Bank of Kenya versus Naaman Muguna Ndege (supra) is to be applied or distinguished on the facts of the present appeal. Counsel might legitimately point to one difference between the two cases: in the Central Bank case, the person prosecuted was the very person against whom the complaint had been made, the complainant’s property having been recovered from his house, so that the complaint carried its own justification; in the present case, by contrast, the person prosecuted was a stranger to the events reported, the true suspects having been arrested and released. But that distinction, properly considered, operates in favour of the appellant and not against it. In the Central Bank case, the complainant had identified the respondent to the police by name and was, even so, held not to be the prosecutor because the police investigated and acted in the exercise of their own discretion. In the present case, there is no evidence that the appellant identified the 1st respondent to the police at all. If a complainant who names a suspect is not thereby constituted the prosecutor where the police act independently, then, a complainant who names no one cannot be. What the disconnect between the persons arrested and the persons charged does speak to is the want of reasonable and probable cause, and arguably the malice, of the prosecuting arm of the State, for whose acts and omissions the 2nd respondent was sued and against whom judgment was entered. The 2nd respondent has not appealed, and nothing in this judgment should be understood as disturbing the decree as against the 2nd respondent. The principles in the Central Bank case are, accordingly, applied. 28.For completeness, the award of general damages was expressed to be “for wrongful arrest and detention”. The arrest and detention of the 1st respondent were, on his own pleading and evidence, effected by police officers from Port Police Station. There was no evidence that the appellant arrested or detained the 1st respondent, or that it instigated, directed or participated in his arrest or detention beyond the making of the report to which I have referred. There was, therefore, no basis in law or in fact for holding the appellant liable under that head either. 29.In light of the conclusion I have reached on liability as against the appellant, it is unnecessary to determine the grounds of appeal directed at the quantum of general damages, the proof of special damages and the award of interest. I would only observe, since the point was fully argued, that special damages must not only be specifically pleaded but also strictly proved; (See Hahn versus Singh [1985] KLR 716). 30.I conclude by reiterating what I said in the Central Bank case: the essential feature of malicious prosecution is an abuse of the process of the court. The 1st respondent was, on the material before the criminal court, prosecuted on evidence so threadbare that the court described it as bogus. He may well have been wronged. But the wrong, on the evidence, was the wrong of those who investigated and charged him, not of the party which reported a genuine theft at its premises and thereafter played no part in the selection of whom to charge. The tort of malicious prosecution identifies, as its proper target, only those who were actively instrumental in setting the law in motion against the plaintiff. The appellant was not shown to be such a party. The 1st respondent’s case against the appellant fell short of the threshold of the tort; the first, third and fourth elements were not proved as against it, and by dint of Mbowa versus East Mengo District Administration (supra), the elements must unite. 31.Ultimately, I find merit in the appeal and it is hereby allowed. The judgment and decree of the subordinate court are set aside as against the appellant and substituted with an order dismissing the 1st respondent’s suit as against the appellant. For the avoidance of doubt, the judgment and decree as against the 2nd respondent, who neither defended the suit nor appealed, are not affected by this judgment. Parties will bear their respective costs. SIGNED, DATED AND PUBLISHED ON 14 AUGUST 2026.NGAAH JAIRUSJUDGE