[2022] KEHC 12158 (KLR)

Kisela & another v Ndagili & 2 others (Civil Case 356 of 2011) [2022] KEHC 12158 (KLR) (1 July 2022) (Judgment)

Neutral citation: [2022] KEHC 12158 (KLR)

Republic of Kenya

In the High Court at Machakos

Civil Case 356 of 2011

GV Odunga, J

July 1, 2022

Between

Tabitha Kisela

1st Plaintiff

Dominic Muema Kasina

2nd Plaintiff

and

Peter Mutisya Ndagili

1st Defendant

Nelson Wambua Ndetei

2nd Defendant

The Hon. Attorney General

3rd Defendant

Judgment

1. The plaintiffs herein, husband and wife, by their plaint dated November 3, 2011 amended on December 31, 2014, sued the defendants herein seeking damages arising from what they claimed was wrongful arrest and malicious prosecution.

2. According to the plaintiffs, on the April 9, 2009, the 1st and 2nd defendants lodged unwarranted complaints to the police at Sultan Hamud Police Station alleging that the 1st plaintiff had stolen Kshs 100,000. 00 belonging to Kanyimbu Self Help Group (hereinafter referred to as 'the Group'). Without bothering to verify the said allegations, it was pleaded that the 3rd defendant arrested the plaintiffs on November 4, 2009 in full glare and hearing of the plaintiffs’ children and members of the public. Additionally, the 3rd defendant arrested the 2nd plaintiff solely for reason that he has the 1st plaintiff’s husband who allegedly stole the said Kshs 100,000. 00.

3. It was pleaded that the plaintiffs were confined and detained at Sultan Hamud Police Station for six days till November 9, 2009 when they were arraigned in court and charged with the offence of stealing contrary to section 275 of the Penal Code. Though they were released on bail, they were not acquitted of the charge until July 21, 2011, after two years torturous trial. The plaintiff’s claimed that the charges against them were brought by the 3rd defendant at the instigation of the defendants maliciously and without reasonable and probable cause and they set out the particulars of malice.

4. It was the plaintiff’s case that by reasons of the aforesaid, their reputations have been harmed and that they have suffered loss, stress and mental anguish and have lost income and profit from their respective jobs. According to them, the defendants’ action was high handed, discriminatory, malicious and oppressive and they set out the particulars of damages.

5. According to the plaintiffs the said complaints had no basis. However, as a result of the said arrest, the plaintiffs were confined as a result of which they were traumatised and their youngest child was psychologically affected.

6. According to the plaintiffs, at the time of their arrest, they were not given an opportunity to prepare themselves. According to them, as a result of the said unlawful confinement, they suffered humiliation and their constitutional rights were violated. They plaintiffs contended that they were later unlawfully and maliciously prosecuted since there was no evidence that they violated any law.

7. According to the plaintiffs their arrest was given wide coverage in the vernacular media which resulted in their humiliation and embarrassment and they were thereby slandered.

8. It was pleaded that since the allegations against them were baseless, the police should not have acted on them as they were actuated by malice. According to the plaintiffs as a result of the foregoing they were forced to resettle elsewhere for their own safety due to soured relations with their neighbours.

9. It was pleaded that the complaints made against the plaintiffs had no basis and were unjustified and that the police should not have entertained them and for that reason they should bear damages for putting the plaintiff through a legal process without evidence. It was pleaded that the charges were preferred out of pure malice.

1st and 2nd defendants’ statement of defence 10. In their written statement of defence and counterclaim, the 1st and 2nd defendants denied that the wrongfully and without justifiable reasons reported the plaintiffs to the police as alleged. Accordingly, they denied that the plaintiffs were mistreated and suffered damages as claimed by the plaintiffs

11. According to the 1st and 2nd defendants they were members of a community self help group known as Kanyimbu Self Help Group in which they contributed money for development projects. They pleaded that they made a bona fide report to the police after the 1st plaintiff disappeared with the funds belonging to the group and requested the police and the local administration to assist them in investigating the matter after the 1st plaintiff refund to refund the group the sum of Kshs 100,000/- given to her on February 26, 2009.

12. According to the 1st and 2nd defendants, they were not responsible in the way the investigations were conducted nor were they responsible for the same and did not in any way interfere in the same or make a decision as to arrest or charge the plaintiffs.

13. It was pleaded that the suit was bad for failure to give the Attorney General notice prior to the commencement of the suit.

14. It was pleaded that on or about February 26, 2009 the 1st plaintiff was entrusted with the safe custody of Kshs 1000,000 as the treasurer of the group. However, the 1st plaintiff disappears with the said money until April 8, 2009 when she called the defendants misrepresented in writing to them that she had placed the money n safe custody in a bank account and that she would refund the same on April 21, 2009 but did not do so.

15. It was pleaded by the said defendants that the 1st plaintiff has, despite repeated demands failed to refund the said sum as a result of which the said defendants suffered loss and damages. They accordingly prayed for Kshs 100,000/- with interest and costs.

The 3rd defendant’s case 16. The 3rd defendant on the other hand entered appearance and statement of defence dated March 19, 2012 and filed on the same date denying the averments set out in the plaint. It was the 3rd defendant’s case that the plaintiffs are not entitled to any reliefs sought and that the case should be dismissed with costs to the 3rd defendant.

17. In their reply to defence and counterclaim, the plaintiffs denied the allegations contained in the defence and counterclaim.

Plaintiffs’ evidence 18. In her witness statement which she adopted as her evidence in chief, the 1st plaintiff, Tabitha Kisela, stated that on November 2, 2009, she left Nairobi for their rural home for to go and prepare their shamba for the season. She left behind her husband, the 2nd plaintiff with their nine year old daughter who was attending Good Shephard Primary School. On 3rd November, she woke up and put on her disused clothing ready to attend toher farm when she saw two men approaching their home, one of whom she recognised as Peter Mutisya Ndangili. She welcomed both men who proposed that they should go for a meeting at Nelson Wambua Ndetei’s kiosk, 400 metres away. Upon going to the said place, she met the said Nelson with another person who was introduced to her as the sub-chief for Kanyililya. There, she was informed to join them for Sultan Hamud Police Station to record a statement on a passbook she had surrendered to them as their treasurer since the team did not see it since the time she handed the same to Peter Mutisya Ndangili.

19. According to the 1st plaintiff, her request to be allowed to change into proper clothing and secure her house was declined. She was then forcefully led to the said police station, 25km away. She stated that she was depressed as the people they came across on the way though she was mad. On the way, she called her husband, the 2nd plaintiff, who told her that he was proceeding to the police station. Upon her arrival at the police station, she heard Peter Ndangili informing the police officer that she was the woman who stole their money and handed over the OB Number. At that point they exchanged bitter words and she was then locked up on allegations of stealing. Upon the arrival of the 2nd plaintiff, their finger prints were taken and they were thereafter locked up after being denied police bond which they had requested for.

20. According to the 1st plaintiff, she was mistreated by the use of foul language by the police officers and they were detained till November 10, 2009 when they were jointly charged with the offence of stealing contrary to section 275 of the Penal Code. They were then released on bail and after the hearing of the case, they were acquitted after two years on July 21, 2011. Upon their release on bail, they returned home and found the said daughter had been accommodated by a good Samaritan but was not attending school due to trauma.

21. The 1st plaintiff stated that during the trial they spent money in form of travelling, accommodation and miscellaneous expenses amounting to Kshs 51,000/- and also paid their advocates fees in the sum of Kshs 50,000. 00 though they were not issued with a receipt for the same. According to her, their arrest and trial was broadcast on local vernacular station as a result of which they were shunned by their neighbours compelling them to move out to a new neighbourhood.

22. Further a s a result of the criminal charges levelled against them, their son who was admitted at Ikuu Boys High School having attained 396 out of 500 marks in Kenya Certificate of Primary Examinations was seriously affected and was unable to concentrate in is studies and as a result his performance took a nose drive compelling them to take him to a different school called Kibera Glory Secondary School.

23. In her oral evidence, the 1st plaintiff relied on the said statement and exhibited her bundle of documents as an exhibit. The said bundle contained proceedings in criminal case no 271 of 2009 and school reports for the children. She disclosed that she had been married to the 2nd plaintiff for over 20 years.’

24. In cross-examination by Mr Kasyoka for the 1st and 2nd defendant, the 1st plaintiff denied that they withdrew Kshs 100,000. 00 and further denied that she went to Krep Bank on February 26, 2009. She denied that she signed for the withdrawal but admitted that there was a time she was a treasurer of the group. Referred to the banking book in the defendants’ bundle of documents, she could not recall the same. She denied that she wrote a letter admitting that she withdrew the said money. She also stated that she was not aware of a meeting held on March 15, 2009. Referred to a letter dated April 8, 2009, she denied that she told the members of the group that she had safely banked the money and that she would refund the same to them. She denied that the said letter was her letter whose existence she was unaware of.

25. According to her she did not authorise the withdrawal of the money but stated that the group asked for the book to enable them withdraw the money though she could not remember the date. In her evidence, she was arrested by the assistant chief who took her to Sultan Hamud Police Station where she was placed in police cells. She admitted that it is upon the police to decide whether or not to release one and that she was taken to court by the police. She however insisted that it was the defendants who complained to the assistant chief who took her to the police station. According to the 1st plaintiff, her two children were minors at the time of the incident.

26. The 1st plaintiff admitted that she had no documents in support of her case for special damages but insisted that the matter was broadcast in Musyi Station though she had no evidence to that effect and had not sued the media station since they were just relying on information. She also had no evidence that she was resettled.

27. According to the 1st plaintiff the case was dismissed after some of the witnesses failed to testify.

28. In cross-examination by Ms Chege for the 3rd defendant, the 1st plaintiff admitted that she was the treasurer for Kanyimbu Self Help Group that intended to purchase a 10 acre plot at Wolua Sub location. She however denied that there was a requirement for 3 signatories and was not aware of the withdrawal of Kshs 100,000/-. She could not recall any complaint made against her in respect of the same to the police. In the criminal case, however, the complainants were the 1st and 2nd defendants and she was arrested as a result of the said complaint whose subject matter was Kshs 100,000/-.

29. The 1st plaintiff denied that they agreed to go and withdraw the said amount insisting that by February 26, 2009, she had already left office and had handed over the properties of the group and she was not aware that she was being looked for but was arrested at her home in Masimba. She denied that she said at the police station that she gave the money to her husband. According to her they were seeking damages for unlawful detention since they were denied bail till after they were taken to court. She asserted that they left the children traumatised and they were taken care by the neighbours though they never took them for treatment. She confirmed that the media only reported what took place in court but insisted that their reputation was damaged. They however had no evidence from the people who heard the broadcast.

30. The 1st plaintiff concede that she did not know the police officers before they were arrested but insisted that there was malice on the part of the police notwithstanding the fact that the police have a duty to arrest and charge. According to her she testified and was acquitted.

31. In re-examination, the 1st plaintiff insisted that she blamed the police because they had no sufficient evidence to take her to court since the investigations officer never turned up in court to testify. She insisted that she did not withdraw the money and stated that she handed over the withdrawal book to the secretary, Nelson Ndetei and Peter Ndagili, the 1st and 2nd defendants.

32. In his statement which he adopted as his evidence in chief, the 2nd plaintiff, Dominic Muema Kasina, stated that on November 2, 2009, the 1st plaintiff left Nairobi for their rural home to prepare their shamba for the season’s rains leaving behind with the 2nd plaintiff their nine year old daughter then studying at Good Shephard Primary School, Nairobi. On November 3, 2009 their said daughter left for school as usual expecting to meet the father after school hours. However, on that day on his way to work, the 1st plaintiff called the 2nd plaintiff and informed him that she was under arrest and was being escorted to Sultan Hamud Police Station.

33. Upon hearing this, the 2nd plaintiff proceeded to the said Police Station to find out the reasons for the 1st plaintiff’s arrest and upon his arrival and introducing himself, he was immediately arrested and locked up without being informed of the reason for his arrest. It was only latter that he was informed that his spouse had allegedly stolen Kshs 1000,000. 00 at K-Rep Bank at Emali Market belonging to the said group. Upon his further inquiries, he was informed that the 1st plaintiff had allegedly informed the police that she had given the 2nd plaintiff the said sum of money.

34. According to the 2nd plaintiff, his pleas to the police for bail in order to go back home and take care of their daughter fell on deaf ears. Instead both pf them were confined and detained at the said police station for seven days after which they were arraigned in court on November 10, 2009 where they were charged jointly with the offence of stealing contrary to section 275 of the Penal Code. Though released on bond, they had to endure 2 years of trial before they were acquitted on July 21, 2011.

35. Upon their being released on bail, they returned to Nairobi where they fund that their daughter had been accommodated by a good samaritan while they were in custody but was not attending school due to worries. According to the 2nd plaintiff, for the two years they were attending court they incurred expenses in form of transport and accommodation totalling Kshs 51,000. 00 and he also retained an advocate at the cost of Kshs 50,000. 00 though he was not issued with a receipt.

36. The 2nd plaintiff stated that their arrest and subsequent trial was broadcast on local vernacular station as a result of which they were shunned by neighbours making their continued stay in the area untenable forcing them to move to a new neighbourhood. Additionally, as a result of being incarcerated, their son who had been admitted to Ikuu Boys High School after scoring 396 marks out of 500 in KCPE of 2008 was seriously affected and was unable to concentrate in his studies as his performance took a nose drive and they were compelled to transfer him to Kibera Glory Secondary School.

37. In his evidence in court, the 2nd plaintiff insisted that he knew nothing about the group’s money prior to the date of his arrest. He stated that the 2nd defendant called him and informed him that since his wife was in Nairobi, they had problems withdrawing the money and the 2nd defendant requested him to tell the 1st plaintiff to return the banking book which the 2nd plaintiff did and the 1st plaintiff returned the said book.

38. According to the 2nd plaintiff he was the founder of the group. He told that he was held in the cells for 6 days and incurred the expenses. Though they retained and paid their advocate, Mr Matata, Kshs 50,000. 00 the said advocate did not give them a receipt of the same and that the advocate left the country. Referred to the letter though which the 1st plaintiff allegedly withdrew the funds, he stated that while the signature resembled the 1st plaintiff’s, the handwriting was not hers.

39. In cross-examination by Mr Kasyoka, learned counsel for the 1st and 2nd defendants, the 2nd plaintiff stated that he was arrested when he went to inquire about the arrest of the 1st plaintiff at the instigation of the 1st and 2nd defendants. He stated that at the Station he found the 1st plaintiff and an assistant chief from a different area as well as the said defendants. According to him, he travelled 17 times from Nairobi to Makindu for the case. The prosecution, he stated, was being led by the prosecutor and that the police officers did testify in the case.

40. It was his evidence that his son was born in 1990 and that the children were stressed as a consequence of their arrest and arraignment though they never took them for medical attention. Referred to the signature on the letter for withdrawal of the money he stated that it resembled that of the 1st plaintiff though it was not hers. He stated that the 1st plaintiff had been a treasurer for the group for 2 terms and reiterated that he was a founder member of the group. According to him, he was staying in Nairobi while the family was at home

41. In cross-examination by Ms Chege, learned counsel for the 3rd defendant, the 2nd plaintiff stated that the complainants were the 1st and 2nd defendants. He reiterated that he was not aware that any money was stolen though he was informed of the same. According to him, though he never heard of the broadcast himself, he was informed of the broadcast by Musyi FM by a relative married in Kirinyaga but he never sued the media as he was only complaining about the people who took him to court on false allegations, the 1st and 2nd defendants.

42. In his evidence, he did not know the arresting officer prior to the arrest and there was no problem between him and the said officer. He however insisted that they were traumatised despite the fact that he had no medical document. He disclosed that his wife, the 1st plaintiff was still suffering from traumatisation. He insisted that he requested for release on bond but was denied the same though they were given one by the court after being detained for 6 days by the police. According to him the police were malicious since they failed to prove their case. He stated that though his children were traumatised, it was not a must that be taken for medication. In his view, it is obvious that children would be traumatised if both parents are arrested and kept away for 6 days. He therefore claimed the expenses he incurred in defending himself as well as the cost of rehabilitation for the children.

43. In re-examination, the 2nd plaintiff asserted that the mark on the letter was not the1st plaintiff’s signature and the letter was not in her handwriting.

1st and 2nd defendants’ evidence 44. DW1, Peter Mutisya Ndangili, in his evidence relied on his witness statement as his evidence in chief. He also relied on the documents he filed with the plaint. In the said statement, he stated that on February 26, 2009 at around 1200 hours, in his capacity as the chairman of Kanyimbu Self Help Group and in the company of the 2nd defendant, nelson ndetei, the secretary and the 1st plaintiff, Tabitha Kisela Muema, the Treasurer, they proceeded to K-rep Bank where they withdrew Kshs 100,000 which was meant for the purposes of purchasing a land at Nguu Settlement Scheme. The said money was entrusted to the 1st plaintiff since the seller was based in Machakos with an understanding that the money would be delivered to the seller the following day. They had arranged to meet on that day at the site. However, when they went to the site the 1st plaintiff was not there and they were informed that the 1st plaintiff had proceeded to Nairobi. The members of the society then decided that the matter be reported to the assistant chief who in turn advised them to report the matter to the police.

45. On April 9, 2009, they reported the same and were advised by the police to continue looking for the 1st plaintiff and upon sighting her to report to the police. After searching for the1st plaintiff, on November 3, 2009, upon receipt of the information that the 1st plaintiff was at home, they proceeded to her home and upon asking the 1st plaintiff what she had done, the 1st plaintiff referred them to her husband. As the mater had been reported to Sultan Hamud Police Station, they proceeded thereto. On the way, the 1st plaintiff called her husband, the 2nd plaintiff saying that the money had been banked by her husband who was the patron of the group. When they reached the police station, the 1st plaintiff was locked together with her husband who had already joined her.

46. According to him, the 1st plaintiff was their treasurer and he used to accompany her to go and deposit and withdraw money from the bank. On February 26, 2009, the 1st plaintiff was their treasurer when they withdrew the money with her. According to him the bank book was returned by the 1st plaintiff on March 8, 2009. It was his testimony that the 1st plaintiff informed him that she had deposited the money in Postbank on March 21, 2009 and that she would refund the same but never did. In his evidence, this undertaking was made in the presence of Nelson Ndetei and that the 1st plaintiff signed the same in his presence. By then, the 1st plaintiff had not returned the passbook.

47. According to the witness, at the time of withdrawal on 2February 6, 2009, the signatories were himself as the chairman, the 2nd defendant as the secretary and the 1st plaintiff as the treasurer. He stated that the 1st plaintiff, as the treasurer, went with the money which she never returned. He testified that he gave evidence in the criminal trial before the Makindu Court where the investigating officer did not testify. In his evidence the charges facing the plaintiffs were true as they were demanding that the money be refunded.

48. In cross-examination by Ms Nyang for the plaintiffs, DW1 stated that he was the chairman of the group and that they intended to purchase a plot and they had agreed that the seller, one Muli, would be paid the money the following day and that was the purpose for the withdrawal of the money which the 1st plaintiff went with for safe keeping. There was however no record that the 1st plaintiff went with the money.

49. According to DW1, thereafter, the 1st plaintiff left the area and a search for her started. He confirmed that the 1st plaintiff was replaced as the group’s secretary.

50. Regarding the letter dated April 8, 2009, in which the alleged withdrawal of the money was acknowledged, it was his evidence that the letter was drafted by Nelson but was signed by the 1st plaintiff in presence of 1st and 2nd defendants. It was his evidence that they were in communication till the 1st plaintiff failed to refund the money.

51. According to the witness, he had no problem with the 2nd plaintiff as his problem was only with the 1st plaintiff though he stated that when the 2nd plaintiff arrived at the police station he stated that the money was safe. He however admitted that he called the 2nd plaintiff to inquire from him the whereabouts of the 1st plaintiff. However, after the time they had given the 1st plaintiff to refund the money lapsed, they decided to lodge a complaint with the police. He clarified that he was not present during the withdrawal of the money at their bank account in Emali. In his evidence the said letter was acknowledged by the 1st plaintiff though they did not countersign the same as witnesses.

52. In re-examination, he explained that he knew the 1st plaintiff’s signature and she signed the letter in his presence. He reiterated that on 26th the 1st plaintiff was still their treasurer. According to him, he only reported the matter to the police but did not direct the police on their investigations.

53. DW2, Nelson Wambua Ndetei, the 2nd defendant similarly relied on his witness statement in which he stated that on February 26, 2009 at around 9pm he left home for Masinga market to join the Chairman and treasurer of their group in order to withdraw Kshs 100,000/- which was meant for buying land. When he reached he found both the chairman, the 1st defendant, and the treasurer, the 1st plaintiff herein, and they proceeded to Emali where they withdrew the said amount and the same was taken by the treasurer and they agreed to meet the following day February 27, 2009.

54. However, the same day February 26, 2009 at about 10pm, the 1st plaintiff went to his house accompanied by his son, Kisela Muema and requested for the 2nd defendant’s phone in order to call her husband. During the said communication, the 2nd plaintiff wanted to know why the 1st plaintiff was entrusted with such a large amount of money yet it was unsafe to do so. DW2 told him that since the treasurer was the 1st plaintiff there was nothing wrong with what they decided.

55. However, the following day DW1 and DW2 waited for the 1st plaintiff at Muli’s farm but the 1st plaintiff failed to show up. They then called the treasurer and informed him not to go and the matter was reported to the assistant chief but no action was taken. In the meantime, they continued searching for the 1st plaintiff who appeared on April 8, 2009 and informed them that she had deposited the money in her husband’s account with Post Bank.

56. On April 9, 2009, they reported the matter at Sultan Hamud Police Station where they were advised to furnish the information should the 1st plaintiff be sighted. It was not until November 3, 2009 that the 1st plaintiff was sighted. The said defendants then relayed the information to the assistant chief and the 1st plaintiff was arrested and latter rearrested and charged.

57. It was his evidence that he was the group’s secretary and supported the evidence adduced by the 1st defendant.

58. In cross-examination, he stated that as at February 26, 2009, the 1st plaintiff was still their treasurer. They however did not record that they had given her the money in question. He stated that when he failed to get the 1st plaintiff on phone he called the 2nd plaintiff the following day who confirmed to him that the money was there and that he would send the 1st plaintiff to take the money. It was after the 1st plaintiff failed to take the money that the office decided to replace her. It was his evidence that the 1st plaintiff disappeared with the money and was traced and arrested at home.

59. In re-examination, the witness stated that he was present when the 1st plaintiff signed the document which the treasurer told him to draft. He also confirmed that he was present when the money was being withdrawn and that the 1st plaintiff went with the same.

Plaintiffs’ submissions 60. On behalf of the plaintiffs it was submitted that during the prosecution of the matter, there was no witnesses including the 1st and 2nd defendants who were the drafters of the alleged agreement/acknowledgement (allegedly drafted by 2nd defendant (Nelson Wambua Ndetei) then allegedly signed by the 1st plaintiff, a fact which the 1st plaintiff denied and was never rebutted.

61. According to the plaintiffs, there was no evidence that on the date of alleged withdrawal of Kshs 100,000. 00 and the 1st plaintiff was present in the bank for such withdrawal. It was noted that what is in the alleged passbook is the signature of the manager of the Bank and not the signature of the 1st plaintiff, and the said manager or representative of the bank was not called to confirm such withdrawal and by whom. Accordingly, there was no evidence that the 1st plaintiff withdrew money nor that she was in custody of the said money, hence it is the 1st & 2nd defendants’ words against that of the 1st plaintiff.

62. According to the plaintiffs, the duration taken to follow up the money is too long considering that the money was allegedly for urgent purpose of purchasing land for the group and that creates doubt as to whether any money was withdrawn and or taken by the 1st plaintiff as alleged in the counter claim. It was noted that the incident occurred on February 26, 2009 while the executive committee was informed on March 15, 2009 almost a month after such withdrawal, and no such committee member was called as a witness neither before this honourable court nor in Makindu Criminal Case No 1571 of 2009. The plaintiffs further submitted that the alleged translator of the Kamba language to English in respect of the acknowledgement was never called as a witness neither was the alleged seller of the land a Mr Muli ever called to validate the allegations that money was withdrawn for the purposes of purchasing land.

63. The plaintiffs contended that no evidence was adduced to confirm that the plaintiffs had admitted having the alleged money in safe custody. It was submitted that the defendants did not adduce any evidence to show when the plaintiffs left the institutions and when her successor was retained hence there was no evidence as to when the 1st handed over the book to the secretary

64. It was submitted that the arrest and prosecution of the plaintiffs was initiated by the defendants as complainants and prosecution witnesses and since the case was finally determined and the plaintiffs acquitted, the defendants are jointly and severally liable for wrongful arrest and prosecution of the plaintiffs.

65. According to the plaintiffs, the mental torture was obvious from the circumstances of the case. It was argued that the plaintiffs spent money on legal fees as prayed for in the plaint and urge the court to find so on a balance of probability as required by the law. It was submitted that the plaintiffs’ claim for general damages was based on the fact that they were wrongfully arrested, confined, charged and prosecuted without good reasons. However, it remained their case that they did not withdraw the money, retain the same and or used it in any way and the defendant had no proof to such allegations whatsoever.

66. In support of their submissions, the plaintiffs relied on Nairobi CA No 315 of 2010, - The Hon Attorney General & 2 Others v LT Benjamin Muema; Kakamega HCCA No 64 & 68 of 2019 (Consolidated), - Anti – Counterfeit Agency & Another v Peter Mbaria Kariuki & 2 Others and Makueni HCCA No 128 OF 2017 - susan Mutheu Muia v Joseph Makau Mutua and urged the Court to find that the plaintiffs were wrongfully arrested, prosecuted and their rights were infringed and to make the following awards:Special damages Kshs 101,000. 00(a)Legal Fees since the inception of the case to date Kshs 250,000. 00(b)General damages for wrongful arrest, prosecution, mental torture and character assassination which we pray to be assessed at Kshs 1,000,000. 00Total Kshs 1,351,000. 00Plus costs and interest of the same from date of judgment and so we do pray.

1st and 2nd defendants’ submissions 67. The 1st and 2nd defendants submitted that from the plaint, the genesis of the suit is the Makindu Criminal Case No 1571 of 2009 which is not in dispute was terminated in the favour of the plaintiff. However, the question as to whether this amounts to justification of entitlement of reliefs emanating from the same and the consequences suffered prior to this and where the liability falls is the bone of contention.

68. According to the said defendants, the issue of malicious prosecution is now a well beaten path and the vital ingredients which must be proved before the court can fully determine the matter are:1. The prosecution was initiated by the defendant or by someone whose acts he is responsible.2. The prosecution was instituted without reasonable or probable cause3. The prosecution was actuated by malice4. The prosecution was terminated in favour of the plaintiffs

69. According to the said defendants, all the four ingredients above must be proved together in order to succeed in the claim for damages for malicious prosecution.

70. As regards the issue whether the prosecution was initiated by the defendant, it was submitted that though it was indeed the defendants who made the complaint at Sultan-Hamud Police Station which led to the arrest of the plaintiffs, it was however the decision of the police to charge. According to the said defendants, it is one thing to make a complaint and quite a different thing to prefer charges and institute proceedings. After a complaint has been made by a complainant it is the police who investigate the matter and decide whether to prosecute or not (a duty that was then in the hands of the Police who were under the office of the Attorney General). This discretion was solely the discretion of the 3rd defendant and the 3rd defendant is an important party to this suit and his participation is paramount. It was submitted that after the 1st and 2nd defendant made their complaint they no longer had control or discretion over the matter.

71. In this case it was submitted that in their pleadings the plaintiffs categorically blame the police for detention and harassment and do not show any participation of the 1st and 2nd defendant save them reporting the matter an act they did as aggrieved law abiding citizens. This clearly indicates the discretionary powers in the hand of the police in this matter. The police department which is under the Inspector General of Police now and was under the 3rd defendant then had the sole duty to investigate, prefer charges and arraign the plaintiffs before court after carrying out their independent investigation without any collusion or involvement of the defendants.

72. It was submitted that on the issue of malice, that the matter was reported by the 1st and 2nd defendant to the police without any iota of malice. Malice according to the said defendants is a deliberate unlawful intention that may cause damage or injury to a person. There should be an improper motive behind the initiation of prosecution by the defendant against the plaintiff. Even if it is the defendants who made the complaint at the police station, as clearly stated above it is the police who carried out investigation further they have a duty of bringing to court and bonding witnesses.

73. It was contended that any faults in failures to attend by witness in the criminal proceedings or caring out proper investigations can only be attributed to the prosecuting bodies. The plaintiffs cannot in this case attributes malice on the 1st and 2nd defendants without proving that the defendants worked in collusion with the 3rd defendant and the Police and this he did not any point prove and as such, the plaintiffs’ claim for malice should ultimately fail. The mere fact that the accused person in the Makindu Criminal Case No 1571 of 2009 were acquitted does not indicate that the issue at hand did not occur and an acquittal of an accused person in a criminal case does not infer malice on the part of the complainant, acquittal cannot be a sole reason for malice, lack of honesty by the defendants should be present and proven.

74. The said defendants, it was submitted, were and are genuinely in pursuit of their money which the 1st plaintiff had obtained from them by virtue of being a treasurer of Kanyimbu Self Help Group, monies which now they still claim in their counterclaim and as such the defendant never at any time had malice and the plaintiffs’ claim is baseless.

75. It was noted that the plaintiffs claim that they suffered loss of liberty, anguish and mental pain as well as been lowered in the estimation of friends and reasonable members of the public is frivolous. First of all, on the issue of his liberty, the 1st and 2nd defendant have never at any time interfered with the liberty of the plaintiff. The plaintiffs were put in custody by the police and were released by them upon getting bond terms from Makindu Law Courts. The police held them after investigation and pursuant to the rule of law and thus this claim forms no basis at all. The plaintiffs in the said criminal case raised the issues of violations of their rights as per their attached pleadings of the lower court proceedings and as it appears, the lower court declined to award this and if at all the plaintiffs had their rights violated as they stated they had the liberty to appeal and get a reprieve for such violation and this they failed to do.

76. Secondly on the issue of the anguish and mental pain, the said defendants’ case was that the 1st plaintiff should not even state this when she has in fact extorted money from the Kanyimbu Self Help Group and still sues the defendants in a bid to win more scores against the Self-help group. Lastly the issue on the plaintiffs been lowered in estimation of their friends and reasonable members of the public cannot stand since the defendants did not publicize the case or the issues of the case and even the plaintiffs did not allude this in their case or even prove it hence if the issues of the matter reached on the know-how of plaintiffs friends then the only inference is that it was through the same plaintiff hence their claim should fail in totality.

77. It was submitted that the costs of rehabilitating traumatized children and the plaintiffs as well as damages arising from defamatory and slanderous broadcast on vernacular radio station that allegedly ridiculed the plaintiffs and resettlement and rehabilitation costs as prayed is also frivolous. First of all, it is trite law that the plaintiffs cannot sue on behalf of the children without the threshold laid out under the provisions of order 31 rule 2 of the Civil Procedure Rules (now repealed and provided for in order 32 rule 1 and 2) requires any plaint filed by a minor to be through a next friend to be accompanied by a consent. This the plaintiffs failed to adhere to. Secondly the 1st and 2nd defendant are not the correct party to sue for the alleged broadcasting and defamations by the said radio station. They have not proved at any point that the defendants had a hand whatsoever at the said broadcasting.

78. It was therefore submitted that the plaintiffs failed to prove their claim for malicious prosecution on a balance of probabilities which hang in favour of the defendants.

79. It was submitted that the plaintiff at the trial did not challenge the counterclaim and has such it is unchallenged and it is only prudent that this court allows it. The plaintiffs only tried to punch holes in the defence and counter claim by only refuting the signature at the main hearing of the suit. The defence and counter claim together with the other documents were filed way back in 2011, the plaintiffs have had the liberty to dispute or raise any issues then but only did so during the examination in chief and as at this the only inference is that this was an afterthought. The 2nd plaintiff however who is a confidant and the husband to the 1st plaintiff discerned resemblance in the signature with that of his wife and this mere denial is frivolous and an attempt to deny a true justification of an unrebutted truth. On their part, it was submitted that the 1st and 2nd defendants were truthful, reliable and credible witnesses. This evidence was not even shaken in cross examination.

80. It was therefore contended that it would be in the interest of justice that this court allows the defendants’ counter claim as prayed and dismiss the plaintiffs’ claims with cost to the 1st and 2nd defendants in this matter.

81. In support of the submissions, the said defendants relied on Makueni-HCCC No 128 of 2017 - Susan Mutheu Muia v Joseph Makau Mutua; Nairobi HCCA No 642 of 2012 - Coperative Bank of Kenya v Sylvester Baraza Ojiambo & The Hon Attorney General; And Kakamega Petion No 10 of 2019 - Dickson Chebuye Ambeyi v The National Police Service & Others and urged the court to find that the plaintiffs have not proved their case against the defendants on a balance of convenience and forthwith allow the 1st defendant’s counterclaim as prayed.

82. On behalf of the 3rd defendant, it was submitted that in a case of malicious prosecution, the plaintiff must prove that the prosecution was actuated by malice and reliance was on Chrispine Otieno Caleb v Attorney General [2014] eKLR, guided by the findings of the judges of the East African Court of Appeal in Mbowa –vs- East Mengo District Administration [1972] EA 352 and Murunga vs Attorney General, [1979] KLR, 138, and it was submitted that the plaintiffs were not maliciously prosecuted.

83. According to the 3rd defendant, the plaintiffs’ arrest was lawful in that the 3rd defendant had a reasonable basis to arrest charge and prosecute the plaintiffs, i.e to implement the functions of police as laid out in the National Police Service Act No 11 of 2011. Among the duties of the police is to provide assistance to the public when needed, protection of property, apprehension of defenders among others. The events that led to the apprehension of the plaintiffs being that the police having been called to investigate loss of Kshs100,000 property belonging to the 1st and 2nd defendants’ self help group, were merely exercising their lawful mandate as provided by the act. It was noted that the 1st plaintiff being employed as the treasurer of Kanyimbu Self Help Group knew she owed a duty of care to safeguard all the financial assets of the 1st and 2nd defendant. Notably there is nowhere in the plaint or during the proceedings where the plaintiffs ably proved or provided evidence that the police had targeted them by arresting them and charging them.

84. It was contended that as a matter of fact, the wheels of justice seem to have rolled timely. The plaintiffs had even been arraigned in the court within the constitutionally provided timelines. To the 3rd defendant, it is the duty of the police to investigate a complaint, form independent opinion and where such opinion forms the basis of a charge, the police then arrest and charge such suspect. This is the particular manner of what happened in the instant case thus lawful arrest and prosecution.

85. It was submitted that from the foregoing, the plaintiffs’ claim for malicious prosecution cannot stand as they have not met the requirements for a tort of malicious prosecution as emphatically laid in Mbowa v East Mengo District Administration [1972] EA 352 andGitau v Attorney General [1990] KLR 13.

86. According to the 3rd defendant, it was conducting his statutory duties and apprehension that an offence may be ongoing. Therefore, as it may be the case, it’s the actions of the 1st and 2nd defendants; officials from Kanyimbu Self Help Group that set the law in motion in the context of the above narrative. The action of the police in the arrest and charging the plaintiff should, therefore, not be regarded as setting the law in motion and thus the plaintiff has failed this test. Consequently, the claim must fail.

87. While conceding that the plaintiffs were acquitted under the section 215 ofCriminal Procedure Code, it was noted that the reason for acquittal was that the prosecution failed to prove its case beyond reasonable doubt to support a conviction. Nothing in the judgment alludes to the malicious nature of prosecution by either of the defendants more so to the actions of the police. In this regard reliance was placed on the case of Socfinaf Kenya Ltd v Peter Guchu Kuria [2002] eKLR.

88. The 3rd defendant submitted that in the circumstances the plaintiffs had not shown any evidence of spite or ill motive of the 3rd defendant thus their cause is futile and an abuse of courts process.

89. It was submitted that there must be proof that there were no reasonable and probable grounds to commence or continue the proceedings and reliance was placed on the case of Naqvi Syed Qmer v Paramount Bank Ltd and the Attorney General [2015] eKLR.

90. The 3rd defendant also relied on Rudd, J in Kagane v Attorney General (1969) EA 643, in which the test for reasonable and probable cause had also long set out, citing Hicks v Faulkner [1878] 8 QBD 167 at 171,Herniman v Smith [1938] AC 305 and Glinski v McIver [1962] AC 726.

91. It was submitted that once a complaint has been lodged with the police it is the police officer whose mandate extends to investigations to charge and arraign the accused in court and thereafter it’s upon the court to adjudge the matter on the basis of evidence tendered. To the 3rd defendant, allowing such claims to exist would in the real sense beat the realms of justice by giving an illusion that once a criminal matter which has been commenced justly fails, then the accused stands automatic compensation from the government and thus this would deplete government coffers unjustly. Consequently, it was submitted that there was a probable cause to commence the proceedings thus the instant proceeding must indeed fail.

92. Regarding the requirement that the plaintiff must show that the defendant acted maliciously in that he must have acted with an improper and wrongful motive, or with an intent to use the legal process in question for some other than its legally appointed and appropriate purpose, it was submitted that the burden of proof is on the plaintiffs to show the malice on the part of the 3rd defendant. Mere setting them up on the plaint is not sufficient and the plaintiffs must provide evidence to the court to show the malicious conduct on the part of the 3rd defendant failure to which makes their claim futile. In this regard the 3rd defendant cited James Karuga Kiiru vs Joseph Mwamburi & 3 Others Nairobi CA NO 171 of 2000and submitted that the prosecution did not have any malice in prosecuting the Plaintiff but rather had a probable cause to do so. As the Plaintiffs did not in the process of the trial provide any information to the contrary, it was submitted that they have failed to meet the requirements to succeed in the malicious prosecution claim thus the claim for damages must fail in its entirety.

93. It was reiterated that the plaintiffs failed to give any evidence that the criminal proceedings against them were personal and not for public benefit. During cross examination, both the 1st and 2nd plaintiffs stated that they had not previously interacted with the police officers that arrested them. This is clear indication that they equally did not have any grudge with the officers that might have been alleged they were settling scores while arresting them. Similarly, it was submitted that the Plaintiffs did not prove that the police were acting as the agents of the 1st and 2nd defendants. Notably, both plaintiffs confirmed during trial that it was the 1st and 2nd defendants who lodged a complaint to the police. They also confirmed that the police officers were not wrong to investigate acting on the report lodged by the 1st and 2nd defendants and that they were simply following what the law permits them to do. This goes without say that the police officers did not arrest him out of any malicious intentions but rather a legal procedure and duty when a claim or a logical complaint is reported. The said duty is established in section 24 of the National Police Service Acton the functions of the Kenya Police Service.

94. It was submitted that the police instituted the proceedings based on the belief that the accused might be guilty founded on the information received from the complainant as was held in Kagame & Others v AG & Another [1969] EA 643 citing Hicks v Faulkner [1878] 8 QBD 167 at 171, Herniman v Smith [1938] AC 305 and Glinski v McIver [1962] AC 726.

95. To the 3rd defendant, in as much as the plaintiff was acquitted on the basis that the court found that the prosecution had not proved its case beyond reasonable doubt, this does not inform that the plaintiff can sue for malicious prosecution and he cited Nzoia Sugar Company Limited v Collins Fungututi Civil Appeal No 7 of 1988 [1988] KLR 399 andDr Lucas Ndungu Munyua v Royal Media Services Limited & Another Civil Case 52 of 2008 [2014] eKLRwhere the court stated that:'With respect to malice, the law is clear that the mere fact that a person has been acquitted of the criminal charge does not necessarily connote malice on the part of the prosecutor.'

96. The plaintiff, it was submitted has not proved in any way that the 3rd defendant was malicious and therefore, there was no malice on his part and the case should be dismissed on that point based on the Court of Appeal decision in the case of Margaret Wanjiru Ndirangu & 4 Others v Attorney General [2020] eKLR.

97. Furthermore, it was submitted, for the court to be able to quantify the damages, the plaintiff should be able to prove or produce evidence to the court to determine how much loss he has suffered owing to his arrest and subsequent prosecution. In this regard the 3rd defendant cited the decision of Waweru, J in the case of Hosea Wilfred Waweru v National Social Security Fund Board of Trustees [2013] eKLR HC at Nairobi, Civil Suit No 172 of 2004.

98. According to the 3rd defendant, in a claim of damages for malicious prosecution, the claimant must prove that the proceedings against him were actuated either by ill-will or spite or by indirect or improper motives.

99. In this case, the plaintiffs noted that they were traumatized mentally together with their children as a result of their arrest. However, neither the 1st nor the 2nd plaintiff demonstrate to the honourable court how they suffered. There was no medical report or treatment notes indicating that they had suffered as alleged or that they were receiving treatment either in form of drugs or counselling due to the alleged trauma. Moreover, the court cannot assess costs where there is no prove of expenditure in terms of receipts demonstrating the same.

100. Regarding damages for defamation and slander, it was submitted that for the plaintiffs to succeed in proving defamation, the following ingredients must be met:-a)That the statement complained of was false;b)That the statement was made publicly and did involve a private conversation;c)That the statement was made negligently; andd)That the person to whom the statement referred must prove that he sustained damages as a result of negligent and false statement.

101. According to the 3rd defendant, the first ingredient has not been met since the statement complained of was not false but was a fair comment on what had happened and the same cannot amount to falsehood. It was contended that the plaintiffs did not prove the second ingredient. Once charges have been preferred against a person, he or she is expected to be arraigned in a court of law. The proceedings are conducted in public meaning that the criminal just system must be allowed to take its course hence the same cannot amount to defamation. The statement in regard to the charges facing the plaintiffs was not made negligently. The same was based on the report made against the plaintiffs by the 1st and 2nd defendants to the police.

102. Further, it was submitted, the plaintiffs did not prove in any way that they suffered as a result of the false statement if any. They should have called a witness who could have shown the extent of damage suffered by them as a result of the said publication. There is no one who testified in favour of the plaintiffs to show that the respect the public had for them had been lowered and that the plaintiffs were viewed as a criminal and dishonest person lacking in integrity. In addition, the plaintiffs did not state in detailed particulars the actual conduct of the 1st and 2nd defendants that defamed him. It was necessary for the plaintiff to quote the actual words complained of and their context. If the words so spoken were claimed to be false or malicious the same were required to be particularly stated. The plaintiffs quoted or specified no false or malicious statement. On this issue the 3rd defendant cited the case ofJohn Otieno Obuya versus National Hospital Insurance Fund & Attorney General (2012) eKLR Nairobi HCCA NO 799 of 2007 and the case ofByrum Kenneth Olenja versus Michael Opundo & Another (2011) eKLR Nairobi HCCA No 230 of 2000; where the court observed that the appellants claim of defamation lacked a basis as it was not properly pleaded as required under order VI rule 6A of the Civil Procedure Rules (now repealed by the Civil Procedure Rules 2010). Under the Civil Procedure Rules 2010 order 2 rule 7(1) provides for the same. This rule provides that where in an action for libel or slander the plaintiff alleges that the words or matters complained of were used in a defamatory sense other than their ordinary meaning, he shall give particulars of the facts and matters on which he relies in support of such sense. In the present suit it was submitted that the plaintiffs did not specifically plead their claim for defamation as is required under order 2 rule 7(1) of the Civil Procedure Rules 2010 and as such they are not entitled to damages for libel and slander. According to the 3rd defendant, in the case of Byrum the court went on to observe that the claim for defamation was in actual fact a duplication as the damages suffered were the same as those for false imprisonment and malicious prosecution. The 3rd defendant asserted that the plaintiffs are not entitled to damages for defamation and malicious prosecution as the same amounts to duplication.

103. Regarding resettlement costs and rehabilitation, it was reiterated that no documentary evidence in form of receipts was adduced in court demonstrating how much costs have been incurred by the plaintiff in the process of relocating and moving from where they previously lived. However, it is good to note that the 1st plaintiff told the court that they did not relocate yet the 2nd plaintiff said that they had to relocate because of the bad reception and attitude they received from their neighbours. This begs the question as to who is really telling the truth as to issues of relocation and resettlement between the 1st plaintiff and the 2nd plaintiff and as such the same should be disallowed.

104. On special damages, it was submitted that the claim for hiring services of an advocate to represent them during trial of Kshs 50,000 as well as transport and accommodation totalling to Kshs 51,000. 00 making a sum of Kshs 101,000. 00 were just pleaded in the plaint. Based on Provincial Insurance Co East Africa Ltd versus Nandwa 1995-1998 2EA 288 it was submitted that no relief under this umbrella should be granted as there lies no evidence of proof by the plaintiffs.

105. In light of the afore going the 3rd defendant prayed that no relief in terms of damages should be awarded to the plaintiffs as they have not proved this aspect and based the case of Devram Manji Daltani v Danda [1949] 16 EACA 35, and Alexander – Tryphon Dembeniotis v Central Africa Co Ltd [1967] EA 310 the suit be dismissed with costs to the 3rd defendant.

Determinations 106. I have taken into account the pleadings, the evidence adduced as well as the submissions made. As regards the claim for malicious prosecution, the following are, in my respectful view, the issues that fall for determination in this suit:1. Whether the criminal proceedings were instituted by the defendants.2. Whether there was reasonable cause and/or justification to make the complaint to the police.3. Whether the prosecution as undertaken by the defendants.4. Whether the said prosecution was actuated by malice.5. Whether the criminal proceedings terminated in the plaintiff’s favour.6. Whether the defendant is liable to compensate the plaintiffs and if so what should be the award of damages.7. Who should bear the costs of the suit?

107. The law surrounding the tort of malicious prosecution is well settled in our jurisdiction. In Mbowa v East Mengo District Administration [1972] EA 352, the East African Court of Appeal expressed 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'.

108. InEgbema v West Nile Administration [1972] EA 60, the same court held:'False imprisonment and malicious prosecution are separate causes of action; a plaintiff may succeed on one and fail on the other. If he established one cause of action, then he is entitled to an award of damages on that issue. 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. There was no finding that the prosecution instituted by Uganda Police was malicious, or brought without reasonable or probable cause. The Uganda Police, unlike Administration Police, are not servants or agents of the respondent.The decision whether or not to prosecute was made by the Uganda Police, who are not servants of the respondents after investigation. There is no evidence of malice on the part of the respondent. The appellant was an obvious suspect as he was responsible for the security of the office from which the cash box disappeared. It cannot be said that there was no reasonable and probable cause for the respondent instigating a prosecution against the appellant. The actual decision to do so was taken by the Uganda Police. As the judge has made no finding as to whether the instigation of the prosecution was due to malice on the part of the respondent, this court cannot make its own finding. The circumstances of this case reasonably pointed to the appellant as a suspect and there was not sufficient evidence that in handing the appellant over to the Uganda Police for his case to be investigated and, if necessary, prosecuted, the respondent was actuated by malice'.

109. In Gitau v Attorney General [1990] KLR 13,Trainor, J had this to say:'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'.

110. It is my considered view that the foregoing set out the law and the conditions to be satisfied in order for a plaintiff to succeed in the tort of malicious prosecution.

111. There was no doubt that the criminal proceedings terminated in the plaintiffs since the plaintiffs were acquitted upon being found that the prosecution had failed to prove its case according to the prescribed threshold.

112. On the issue whether the criminal proceedings were instituted by the defendants, the 1st and 2nd defendants’ case was that they simply reported the fact of the stealing of the money belonging to the group to the police who caused the 1st plaintiff to be arrested and charged and that the police were not their agents. In this case, however, the role of the 1st and the 2nd defendants was not just restricted to reporting loss of the money. According to their own evidence in their report, their pointed the finger at the 1st plaintiff as the culprit. According to the 1st plaintiff, her arrest was carried out by the assistant chief from another area after which she was handed over to the police who are represented by the 3rd defendant herein. Accordingly, the police in effecting the arrest of the 1st plaintiff was acting at the behest of the 1st and the 2nd defendants. Therefore, I have no hesitation whatsoever in answering the first issue in the affirmative.

113. On the issue whether the prosecution was undertaken by the defendants, there is no doubt at all that the plaintiffs’ prosecution was undertaken by the police who are the agents of the 3rd defendant. There is however, no evidence that the police in prosecuting the plaintiffs were acting as agents of the 1st and 2nd defendants despite the fact that the report was made by the said defendants who also assisted in arresting the 1st plaintiff.

114. With respect to the issue whether there was a reasonable and probable cause for prosecuting the plaintiffs, the court is enjoined to consider the evidence in determining whether or not the action taken by the police was malicious.

115. In James Karuga Kiiru v Joseph Mwamburi and 3 Others, Nrb CA No 171 of 2000, the court 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.'

116. I therefore associate myself with the position adopted by Mativo, J in Stephen Gachau Githaiga & Another v Attorney General [2015] eKLR, that;'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 fuelled 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.'

117. Rudd J in Kagane v Attorney General [1969] EA 643, set the test for reasonable and probable cause thus:'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 lead to 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.'

118. It was similarly held in Simba v Wambari [1987] KLR 601 that:'The plaintiff must prove that the setting of the law in motion by the inspector was without reasonable and probable cause…if the inspector believed what the witnesses told him then he was justified in acting as he did and I am satisfied the plaintiff has not established that he did not believe them or alternatively that he proceeded recklessly and indifferently as to whether there were genuine grounds of prosecuting the plaintiff or not.'

119. Malice, however, can either be express or can be gathered from the circumstances surrounding the prosecution. A prosecution can either be mounted based on an offence committed in the presence of law enforcement officers or by way of a complaint lodged by a person to the said officers or agencies. However, the mere fact that a complaint is lodged does not justify the institution of a criminal prosecution. The law enforcement agencies are required to investigate the complaint before preferring a charge against a person suspected of having committed an offence. In other words, the police or any other prosecution arm of the government is not a mere conduit for complainants. The police must act impartially and independently on receipt of a complaint and are expected to carry out thorough investigations which would ordinarily involve taking into account the versions presented by both the complainant and the suspect. I say ordinarily because the mere fact that the version of one of the parties is not considered does not make the subsequent prosecution malicious. As was held by Ojwang, J (as he then was) in Nairobi HCCC No 1729 of 2001 – Thomas Mboya Oluoch & Another v Lucy Muthoni Stephen & Another:'Unless and until the common law tort of malicious prosecution is abolished by parliament, policemen and prosecutors who fail to act in good faith, or are led by pettiness, chicanery or malice in initiating prosecution and in seeking conviction against the individual cannot be allowed to ensconce themselves in judicial immunities when their victims rightfully seek recompense. I do not expect that any reasonable police officer or prosecution officer would lay charges against anyone, on the basis of evidence so questionable, and so obviously crafted to be self-serving. To deploy the state’s prosecutorial machinery, and to engage the judicial process with this kind of litigation, is to annex the public legal services for malicious purposes'.

120. Therefore, where the police deliberately decide not to take into account the version of the suspect and acts on a story that eventually turn out to be improbable and which no ordinary prudent and cautious man would have relied upon that failure may constitute lack of reasonable and probable cause for the purposes of malicious prosecution. On the other hand, it would be obviously absurd to make a defendant liable because matters of which he was not aware put a different complexion upon facts, which in themselves appeared a good case for prosecution. But neglect to make a reasonable use of the sources of information available before instituting proceedings would be evidence of want of reasonable and probable cause and also malice. It is not required of any prosecutor that he must have tested every possible relevant fact before he takes action. His duty is not to ascertain whether there is a defence, but whether there is a reasonable and probable case for a prosecution. Circumstances may exist in which it is right before charging a man with misconduct to ask for an explanation but no general rule can be laid down.

121. The law as I understand it is that in order to succeed on the ground that the prosecution of the plaintiff was malicious, the plaintiff must show that the defendant or his servants were actuated by ill will or spite against him or an improper motive. The plaintiff has to show that the defendant had no reasonable or probable cause to prosecute him. The question of reasonable and probable cause depends in all cases not upon the actual existence but upon reasonable bona fide belief in the existence of such state of things as would amount to a justification of the course pursued in making the accusation complained of no matter whether the belief arises not on the recollection and memory of the accuser or out of the information furnished to him by others. In other words, the person preferring the charge or laying a complaint before the court should have an honest belief in the guilt of the person charged based upon reasonable grounds depending on the state of circumstances which if they are true would lead any prudent and cautious man placed in the position of the prosecutor to the conclusion that the person he is charging is probably guilty of the crime imputed. The question as to whether there was reasonable and probable cause for the prosecution is primarily to be judged on the basis of an objective test and that is to say, 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 consists 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 prudent and cautious man to the extent of believing that the accused is probably guilty. If and in so far as that material is based upon information, the information must be reasonably credible such that an ordinary prudent and cautious man could honestly believe it to be substantially true and to afford a reasonably strong basis for the prosecution. Malice means a wrongful act done intentionally without a just cause or excuse. So to prosecute anyone for an improper motive can be evidence of malice.

122. As was held in R v Attorney General exp Kipngeno Arap Ngeny High Court Civil Application No 406 of 2001:'A criminal prosecution which is commenced in the absence of proper factual foundation or basis is always suspect for ulterior motive or improper purpose. Before instituting criminal proceedings, there must be in existence material evidence on which the prosecution can say with certainty that they have a prosecutable case. A prudent and cautious prosecutor must be able to demonstrate that he has a reasonable and probable cause for mounting a criminal prosecution otherwise the prosecution will be malicious and actionable'.

123. Therefore, criminal process ought to be invoked only where the prosecutor has a conviction that he has a prosecutable case. Whereas he does not have to have a full proof or watertight case, he ought to have in his possession such evidence which if believable might reasonably lead to a conviction. He does not have to have evidence which disclose a prima facie case under section 210 of the Criminal Procedure Code since a decision as to whether a prima facie case is disclosed is a jurisdiction reserved for the trial court. He however must have evidence which satisfy him that his is a case which ought to be presented before a trial court. He must therefore consider both incriminating and exculpatory evidence in arriving at a discretion to charge the accused. Unless this standard is met, the court may well be entitled to infer based on the evidence that the prosecution was mounted without reasonable or probable cause in that there were no facts, which on reasonable grounds, the defendant genuinely thought that the criminal proceedings were justified.

124. In this matter, the 1st and 2nd defendants’ case was that they had entrusted the 1st plaintiff with the safe custody of the group’s funds and that the 1st plaintiff failed to avail the same when required. I find that the said position subject to proof would clearly justify the making of a complaint to the police as regards the 1st plaintiff. However, there was no complaint made against the 2nd plaintiff by the said defendants. It is not clear why the 2nd plaintiff was arrested, locked up and arraigned in court. No one testified that they lodged any claim against him and the alleged information from the 1st plaintiff was clearly inadmissible. I therefore find that there were no reasonable grounds for arresting and prosecuting the 2nd plaintiff. The actions by the 3rd defendant were therefore actuated by malice and seemed to have been intended to coerce the 2nd plaintiff into persuading the 1st plaintiff to admit liability to the 1st and 2nd defendants.

125. That leads to the issue whether the prosecution was actuated by malice. Malice, as stated hereinabove, can either be express or can be gathered from the circumstances surrounding the prosecution. Although malice means a wrongful act done intentionally without a just cause or excuse, to prosecute anyone for an improper motive can be evidence of malice and as was appreciated inR v Attorney General exp Kipngeno Arap Ngeny (supra) a criminal prosecution which is commenced in the absence of proper factual foundation or basis is always suspect for ulterior motive or improper purpose.

126. In this case it is clear from the above discourse that the arrest and arraignment of the 2nd plaintiff was meant to achieve some collateral purpose.

127. That brings me to the issue of the termination of the proceedings. There is no doubt that the criminal proceedings were terminated in favour of the plaintiffs. It is now trite law that acquittal whether after hearing both prosecution and defence witnesses or on a finding that there is no case to answer amounts to a termination in favour of the accused. The law is that 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. In Egbema v West Nile Administration [1972] EA 60, it was held:'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'.

128. It follows that the contention by the defence witnesses that the plaintiff was acquitted on a technicality is neither here nor there. It is conceded that no appeal was lodged against the acquittal and for purposes of malicious prosecution the acquittal was a determination in favour of the plaintiff.

129. The next issue for determination is whether the defendants are liable to compensate the plaintiffs and if so what should be the award of damages. In the Uganda case ofDr Willy Kaberuka v Attorney General Kampala HCCS No 160 of 1993 it was held:'The plaintiff suffered injury to his reputation. He testified that the news of his appearance in court was published in a newspaper whose circulation is believed to be generally wide. He spent a period of over four months appearing in court on charges, which were hardly investigated by the defendant’s servants. He must have suffered the indignity and humiliation. He is also entitled to recover damages for injuries to his feelings especially the possibility of serving a sentence. There are no hard and fast rules to prove that the plaintiff’s feelings have been injured or that he has been humiliated as this is inferred as the natural and foreseeable consequence of the defendant’s conduct. The plaintiff’s status in society is also a relevant consideration and for all these reasons the plaintiff is entitled to damages. A plaintiff who has succeeded in his claim is entitled to be awarded such sum of money as will so far as possible make good to him what he has suffered and will possibly suffer as a result of the wrong done to him for which the defendant is responsible'.

130. In my view the considerations therein are to be taken in the context of the tort of malicious prosecution. In this case the plaintiffs were arrested and kept in custody for 6 days before being arraigned before court. No reason has been given why it took such a long period before presenting them in court. They were eventually acquitted after 2 years.

131. It is therefore my view based on my findings hereinabove that whereas the suit against the 1st and 2nd defendants is unmerited and is hereby dismissed with no order as to costs, the 1st plaintiff is entitled to damages as against the 3rd defendant for wrongful detention while the 2nd plaintiff is entitled to damages as against the same defendant for wrongful detention and malicious prosecution. The counterclaim by the 1st and 2nd defendants similarly fails with no order as to costs.

132. In Jacob Juma & Another vs The Commissioner of Police & Another Nairobi HCCS No 661 of 2007, this court awarded to the plaintiff a sum of Kshs 2,000,000. 00 for each plaintiff in respect of general and aggravated damages for malicious prosecution on January 14, 2013. The plaintiff was a private contractor.

133. However, an award in respect of malicious prosecution ought not to be treated on the same pedestal as that in respect of defamation. Where in defamation, the tort has direct impact on the reputation of the plaintiff, in malicious prosecution the impact is not as direct.

134. It is my view that an award of Kshs 1,000,000. 00 for general damages for wrongful detention to the 1st plaintiff is reasonable while for the 2nd plaintiff, an award of Kshs 1. 5 million for both wrongful detention and malicious prosecution is reasonable compensation in the circumstances and I award the same.

135. I however decline to make any award for defamation since no witness was called to prove that fact. For one to succeed in defamation there must be evidence of publication to at least one other person other than the person defamed. Similarly, in the absence of any medical evidence that the children of the plaintiffs underwent any trauma, I decline to make any award in that respect. I also decline to make any award in respect of the special damages claimed in the absence of any documentary proof.

136. Regarding the counterclaim, there was no evidence apart from bare allegations that the amount in question was handed over to the 1st plaintiff.

137. Consequently, there will be judgement against the 3rd defendant in favour of the 1st and 2nd plaintiffs in the sum of Kshs 1 million and 1. 5 million respectively. They will also have interest on the said sums from the date of this judgement till payment in full plus the cost of this suit.

138. It is so ordered.

READ, SIGNED AND DELIVERED IN OPEN COURT AT MACHAKOS THIS 1ST DAY OF JULY, 2022. G V ODUNGAJUDGEDelivered in the presence of:Ms Nyang for the PlaintiffCA Susan