https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8618

Wahonya v Opiyo & another (Civil Appeal E047 of 2025) [2026] KEHC 8618 (KLR) (19 June 2026) (Judgment) Neutral citation: [2026] KEHC 8618 (KLR) Republic of Kenya In the High Court at Siaya Civil Appeal E047 of 2025 DK Kemei, J June 19, 2026 Between Manuel Ominde Wahonya Appellant and Henry Opiyo 1st Respondent Joan Roda Otuko 2nd Respondent (Being an appeal from the Judgement and Decree Hon. Mkala Jacob Punga,(SRM) in Siaya CMCC No. E085 of 2024 delivered on 16/6/2025) Judgment 1.The appeal herein arises from the judgment of Hon. Mkala Jacob Punga, RM dated 16/6/2025 in Siaya CMCC No. E085 of 2024 wherein he dismissed the Appellant’s suit as he had failed to prove his case on a balance of probability. 2.The Appellants was aggrieved and duly filed his Memorandum of Appeal dated 16th July 2025 wherein he raised the following grounds of appeal; -i.The learned trial Magistrate erred in both law and fact by finding and holding that the appellant did not prove malice on the part of the Respondents for bringing a charge of malicious prosecution against the appellant when there was overwhelming evidence adduced for that purpose.ii.The learned trial Magistrate erred in his appreciation of the evidence before him of malicious arrest and prosecution when the trial magistrate in Siaya Cm Criminal Case No. E055 of 2020 had found as of fact that no evidence had been adduced before her of the existence of a pit latrine which would be capable of being destroyed.iii.It was a grave misapprehension of the facts before him for the learned trial Magistrate to find and to hold that malice was not proved when in the judgment acquitting the appellant of criminal charges, the Court then had observed that even the photographs produced did not show the existence of debris that would be consistent with a destroyed toilet.iv.The learned trial Court erred in both law and fact by failing to appreciate that the evidence adduced by the appellant demonstrating the existence of a long-standing land dispute was evidence enough of motive on the part of the 1st Respondent to falsely accuse the appellant of the offence of malicious prosecution.v.The learned trial Magistrate misdirected himself on both law and fact by holding that the mere fact that the appellant was placed on his defence was evidence of the existence of probable cause to arrest and charge the appellant in the first place.vi.The learned trial Magistrate erred in his appreciation of the evidence adduced before him to realize that the arrest, arraignment and prosecution of the appellant in court was merely in furtherance of the land dispute that he has had against the 1st Respondent herein and not based on any commission of a crime.vii.The learned trial Magistrate erred in law and fact by holding that since the police do not make the decision to charge, the failure to join the Director of Public Prosecution was fatal to the appellant’s case when the appellant sought among other prayers, general damages for wrongful arrest, a claim on the police could answer to.viii.The Judgment has occasioned a miscarriage of justice.It Is Proposedto ask this Honourable Court for Orders:-a)that this appeal be allowed.b)that the judgment and decree of the Court below be set aside and replaced with one allowing the appellant’s case in the Subordinate Court.c)that this Court be pleased to assess damages reasonably payable to the appellant.d)that the costs of this appeal and of the case in the Court below be awarded the Appellant. 3.This being the first appellate Court, its duty is well spelt out to re-evaluate the evidence tendered before the trial Court and or approve at its own independent conclusion. The Court will also have to take into account the fact that it did not see or hear the witnesses as they testified. See Selle vs Associated Motor Boat Company Limited (1968(E. A. 123. 4.The Appellant had lodged suit against the Respondents vide a plaint dated 6th November 2024 in which he sought for the following reliefs;i.General damages for malicious prosecution.ii.General damages for wrongful arrest.iii.Special damages as particularized at paragraph 9 of the Plaint.iv.Costs of the suit.v.Interest on (a), (b), (c) and (d) above at the Court rates from the date of judgment till payment in fullvi.Any other or further relief from the Court may deem just to grant. 5.The trial commenced in earnest on 14/5/2025. 6.Manuel Ominde Wahonya (PW1) in his evidence stated inter alia; that he reside at North Gem Malanga Sub location and a farmer; that he belonged to one clan with the 1st Respondent herein; that he brought them to Court because they fabricated a case against him; that he adopted his statement dated 6/11/2024 as his evidence in chief; that Henry is the one who went to report to the police which investigation were not done before proceeding to charge; that the report was malicious to charge him with unfounded claim of breaking a toilet; that the Attorney General has been sued because the police did not conduct investigation; that he blamed the police because they are the ones who arrested him from a funeral; that he has been in and out of court for three and half years and has wasted time and that his reputation has changed; that he has used money to pay Advocate to defend him.On cross examination, he stated inter alia; that he was arrested on 12/9/2020 and charged on 15/9/2020; that the land in dispute was in the name of the 1st Respondent; that he did not contest the land ownership in court; that he did not enjoin the DPP; that he paid Kshs 200, 000/as legal fees to his Advocate but did not file proof of payment that he sued the Attorney General on behalf of the ODPP; that he did not know the investigating officer before the material date; that he did not record his statement at the police station; that there was a complainant in the criminal case who presented two witnesses who claimed that they saw him breaking the toilet; that he had not availed receipts for the special damages.The Appellant thus closed his case. 7.Henry Opiyo Akama (DW1) testified inter alia; that he comes from North Gem Malanga and a famer; that he filed his statement dated 11/12/2024 which he adopted as his evidence in chief.On cross examination, he stated inter alia; that he was the complainant in the criminal case; that he saw the Appellant herein demolishing his toilet; that he presented the evidence to the police and the assessment costs; that he had no dispute with the Appellant prior to the incident; that his complaint was not false and thus the Appellant was not wrongly prosecuted; that he had witnesses who had witnessed the incident and had recorded their statements and that the police visited the scene.The 1st and 2nd Respondents thus closed their respective cases. 8.The learned trial magistrate later considered the evidence and came up the impugned judgement. 9.The appeal was canvassed by way of written submissions. All the parties duly complied. 10.Appellant raised one issue, namely whether or not the learned magistrate was right to have dismissed the appellants claim for compensation for malicious prosecution and wrongful arrest as well as the special damages related to his defence. 11.It was submitted that the plaintiff is required to prove in a case for malicious prosecution and wrongful arrest, certain ingredients in order to succeed. Justice Mativo (as he then was) in Stephen Gachau Githaiga & another v Attorney General [2015] KEHC 655 (KLR) held as follows-i.Whether the criminal proceedings were instituted by the defendant.ii.Whether there was reasonable cause and/or justification to make the complaint to the police.iii.Whether the said prosecution was actuated by malice.iv.Whether the criminal proceedings terminated in the plaintiff’s favour. 12.As regards the aspect that the prosecution had been instituted by the 1st Respondent and that the said proceedings were terminated in favour of the Appellant, it was submitted that these two issues were readily proved by the appellant and are indeed not in contention. That the 1st respondent readily told the court during his testimony before the court below, both at the criminal case and the civil case that he made the report to the police after finding the appellant destroying his toilet. Refer to the 1st respondent’s testimony as PW1 at page 30 of the record of appeal. That the judgment of the trial court in the criminal case appears at pages 51 to 54 of the record of appeal. It is self-evident from the holding of the court as appears at page 54 of the record of appeal that the trial of the appellant were terminated in his favour.Reliance was placed in the Supreme Court of Canada decision in Nelles Vs Ontario [10}, the Alberta Court of Appeal, in Radford v Stewart, which held:-“There are four elements to the tort of malicious prosecution: the prosecution must have been initiated by the defendant, the proceedings must have been terminated in favour of the Plaintiff, there must be an absence of reasonable and probable cause and there must be malice or a primary purpose other than that of carrying the law into effect." 13.As regards the aspect of reasonable cause or justification for the complaint, it was submitted that the substance of the charge as appears in the charge sheet (page 13 of the record of appeal) is that the appellant is accused of destroying a toilet belonging to the 1st respondent. In order to demonstrate that there was reasonable cause to make the complaint, the 1st respondent needed to show the police, and the court, that he indeed had built a toilet, which was then destroyed by the appellant. In order to demonstrate that his accusation/complaint against the appellant was justified or made with probable cause, the 1st respondent needed to provide cogent and acceptable evidence the existence of the toilet and its destruction by the appellant. That on their part, the prosecution/police needed to demonstrate that they carried out independent investigations the outcome of which verified the complaint by the 1st respondent. Anything less than this must result in the conclusion that the arrest and prosecution was not reasonable or justified. That the evidence adduced before the trial court, and more specifically the lack thereof, leave no room for doubt that the arrest and prosecution of the appellant was not justified. That the testimony of the 1st respondent in the criminal case appears at page 30 and 31 of the record of appeal. He told the court that he saw the appellant destroy his toilet. Yet the only image available on the photograph produced in court was that of a foundation. The 1st respondent alleged that at the time of taking the photograph, the appellant had destroyed the toilet and was dumping the materials in a pit. That no photograph of the pit is produced. This issue is further made more glaring by the fact that there is no consistent evidence of the kind of toilet that was being alleged to have been on the site. At page 33 of the record of appeal, PW3 in the criminal case told the court firstly, that there was a 3 door toilet in that site. Later in the same page under cross examination, he tells the court that the toilet had only reached lintel stage. That while the 1st respondent told the court that he actually saw the appellant destroy his toilet, PW3, the only alleged eye-witness told the court that he is the one who called the 1st respondent to the scene and that he had only seen the appellant destroying the floor and just assumed that he brought down the wall. That there is the police who are are alleged to have visited the scene. If indeed they did, it is strange that they collected for themselves no evidence of damage. They did not take any pictures of the alleged damage by themselves and simply accepted the accusation made by the 1st respondent. That it is indeed strange that a whole toilet could be brought down and both the complainant and the police visit the scene on the same day and there is no evidence of debris from the demolition. How can wood and iron sheets and metal rods used to make a toilet just disappear into thin air? That the attempt at explanation by the 1st respondent that the appellant dumped all of them in a pit is just ridiculous. It was submitted that it’s this lack of evidence on an issue which if true would literally have a mountain of evidence that one must deduce the fact that the complaint and the ensuing arrest and prosecution were without justification at all. 14.As regards the aspect of malice, reliance was placed in the case o Kasana Produce Store Vs Kato [2015] eKLR at page 191, paragraph G-I where Duffus V. P laid down the ingredients for malicious prosecution as follows:-i.The plaintiff was prosecuted by the defendant in that the law was set in motion against him by the defendant on a criminal charge. The test is not whether the criminal proceedings have reached a stage at which they may be described as a prosecution but whether they have reached a stage at which damage to the plaintiff result.ii.That the prosecution was determined in the plaintiffs favour.iii.That it was without reasonable or probable cause-On the evidence the defendant did not believe in the justice of his own case.iv.It was malicious-The defendant had improper and indirect motives in pursuing the false charge against the plaintiff.That Pages 16 to 21 of the record of appeal contains the evidence which the appellant produced before the court that tried the criminal case as evidence of the land dispute that has persisted between the appellant’s family and that of the 1st respondent.That while the 1st respondent claims that there is no land dispute, these documents indeed tell a different story. It is clear that there is a long standing dispute and the appellant has led efforts that are geared towards challenging the registration of the 1st respondent as the owner of LR NO. NORTH GEM/MALANGA/1105.That admittedly, the criminal case did not need to address competing claims over the said parcel of land. But at the same time, it was necessary for the police to take in to account the fact that the 1st respondent had every motive to bring a trumped up accusation against the appellant in furtherance of the ongoing rivalries.That the total lack of evidence to support the accusation that the appellant brought down or otherwise destroyed the 1st respondent’s toilet, and the fact that the said parties have this ongoing dispute over land, we submit, is itself evidence of malice.In Gitau Vs. Attorney General, 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”.That the 1st Respondent herein set in motion the complaint that resulted in the arrest and prosecution of the appellant. He did so maliciously knowing very well that no toilet existed and just to advance an already existing rivalry. The police accepted the complaint wholly without the benefit of independent investigations and thus there was no justification for the charge. 15.It was submitted that for the reasons foregoing, the court is urged to allow the present appeal, set aside the judgment and decree of the court below and replace the same with an order allowing the appellant’s case and to determine and award damages to the appellant as prayed for in the plaint. That the costs be allowed. 16.The 1st Respondent raised one issue for determination namely, whether the trial court erred in fact and law in arriving at the finding that the appellant did not prove malice on the part of the 1st Respondent. It was submitted that the threshold required for a case of malicious prosecution has been laid out in the case of Sylvanus Okiya Ongoro vs. Director of Criminal Investigations & 4 others [2020] eKLR, where the court held:“What I gather the petitioner to be complaining about is that his prosecution was malicious as it was unjustified. The principles governing a claim founded on malicious prosecution were laid down by Cotran, J in Murunga vs. Attorney General (1979) KLR, 138 as follows: -(a)The Plaintiff must show that the prosecution was instituted by the Defendant, or by someone for whose acts he is responsible;(b)The Plaintiff must show that the prosecution terminated in his favour;(c)The Plaintiff must demonstrate that the prosecution was instituted without reasonable and probable cause;(d)He must also show that the prosecution was actuated by malice.The four principles were adopted in similar matters as follows: -(i)J. B. Ojwang, J (as he then was) in Thomas Mboya Oluoch & Another vs. Lucy Muthoni Stephen & Another (2005) eLKR;(ii)Ruth N. Sitati, J in Patrick Muriithi Kukuha vs. Edwin Warui Munene & 5 Others (2005) eLKR;(iii)Alnashir Visram, J (as he then was) in Kiragu vs. Muriuki & Another (2004) eLKR;(iv)D. K. Maraga, J (as he then was) in Zablon Mwaluma Kadon vs. National Cereals & Produce Board (2005) eLKR.Similarly, in the case of Patrick Nyamuke Etori vs. National Police Service Commission & 2 others [2019] eKLR, the court addressed itself to proof of malicious prosecution. It observed:“That means the petitioner was actually complaining of malicious prosecution in this petition. However, for one to establish a case for malicious prosecution, he must prove that the prosecution had no legal basis and that it was actuated by malice.”The position was well stated in the case of Mbowa vs. East Mengo Administration [1972] EA 352, thus;“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.”The court went on to enumerate essential ingredients of the tort of malicious prosecution, namely;“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; and4.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.”It was thus submitted that the Appellant was bound to prove the above elements if he expected to succeed even on the basis that his arrest and prosecution was malicious. That he did not attempt at all to prove any of the ingredients either against the 1st or 2nd respondents as was required of him by the law. That the burden of proof fell on him in terms of sections 107 through 109 of the Evidence Act. 17.As regards the 1st issue as to whether the case was instituted by the 1st Respondent out of malice, it was submitted that the test for whether a case was instituted with a reasonable and probable cause was also laid out by the Court of Appeal in Kagane & Other v The Attorney General & Another [1969] EA 643, where Rudd J held as follows: -“…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. That is to say, to constitute reasonable and probable cause, the material within the knowledge of the prosecutor at the time he instituted the prosecution, whether that material consisted of facts discovered by the prosecutor or information which has come to him or both, must be such as to be capable of satisfying an ordinary reasonable prudent and cautious man to the extent of believing that the accused is probably guilty. If and so far as that material is based upon information, the information must be reasonably credible, such that an ordinary reasonable prudent and cautious man could honestly believe to be substantially true and to afford a reasonably strong basis for the prosecution.”In Samson John Nderitu v The Attorney General [2010] eKLR, Nambuye J (as she then was) held as follows: -“It is trite and this court, has judicial notice of the fact that before an accused person is taken to court, and arraigned in court for criminal prosecution, the prosecuting authority namely the police or whatever unit, whose functions fall under the office of the Defendant, usually carry out investigations, record statements from potential witnesses, analyze the facts to determine if the facts disclose an offence before arraigning such a person in a court of law.”That the 1st Respondent made a complaint to the police station that his pit latrine was damaged. The police went to the scene, confirmed the incident and even took photographic evidence. Statements were recorded and the file forwarded to the ODPP for approval. Up to this stage, it is clear that the person with the mandate to approve any complaint is the office of the ODPP and that is done after a thorough review of the case. In the instant case, the ODPP approved the file to mean there was sufficient evidence of the commission of the offence by the appellant. The 1st Respondent did not stop the police from investigating the matter to find out whether the 1st Respondents complaint was made wrongly or that the same was rightfully made. In the case of Mosigani v Khisa & another (Civil Appeal 001 of 2020) [2025] KEHC 1677 (KLR) (27 February 2025) (Judgment) the court held;On who is the prosecutor, Clark and Lindsell at paragraphs 16-18 states “their Lordship confirmed that a person who merely gives information to the police on the basis of which a decision to prosecute is made by the police or the Crown. The prosecution source will not be liable for malicious prosecution. The informant will not be the prosecutor” However, a complainant will be regarded as the prosecutor and liable for malicious prosecution if the following conditions are met;i.The defendant falsely and maliciously gave information about an alleged crime to a police officer stating a willingness to testify against the claimant and in such manner as makes it proper to infer that the defendant desired and intended that a prosecution be brought against the claimant.ii.The circumstances are such that the facts relating to the alleged crime are exclusively within the knowledge of the defendant so that it is virtually impossible for the police officer to exercise any independent discretion or judgement on the matter.iii.The conduct of the defendant must be shown to be such that he makes it virtually inevitable that prosecution will result from the complaint. His conduct is by such nature that if a prosecution is instituted by the police officer, the proper view is that the prosecution has been procured by the complainant. The judgement clearly establishes that the claimant must demonstrate that the defendant acted in such a manner as to be responsible directly for the initiation of proceedings. The responsibility for initiating the prosecution must be his, not the result of a truly independent Judgment to prosecute on the part of the police, or some other party”iv)in the instant case, any of the three elements was not proved against the 1st Respondent hence the 1st Respondent cannot be blamed for malicious prosecution. 18.As regards the appellant’s allegation that there was malice because the court held that there was no toilet that existed on the ground capable of being damaged, it was submitted that this is far from the truth. That the 1st Respondent called two witness who actually saw the Appellant damaging the toilet and further that there was an image to show the said pit latrine that was damaged but the same was not produced due to lack of a photographic certificate. It is therefore evident that the toilet existed but it is unfortunate that the investigating officer in this case failed to file a photographic certificate and therefore the images for the said toilet could not be admitted as evidence and that explains why the 1st Respondents case failed. This reason is clearly captured in page 3 of the judgement. It is therefore submitted that the failure of the 1st Respondents criminal case was due to the failure by the police to attach crucial evidence and that mistake cannot befall the 1st Respondent whose work was simply to report a complaint to the police station.As regards the appellant’s allegation that the 1st Respondent made a false report to the police against the plaintiff as a continuation of a land dispute with the Appellants family, it was submitted that it is actually the appellant who has raised issues with the 1st Respondents parcel claiming that the land is theirs and even wrote a letter questioning how the 1st Respondent acquired the same. That the said documents were produced by the appellant as exhibit-10 and 11. Apart from the said letters, there is no single evidence by the appellant that the 1st Respondent ever took any action against the appellant over the land and no single case has ever been filed on the said land in question. If anything, it is actually the appellant who has filed this present case as a revenge mission since he feels the 1st Respondent acquired their parcel illegally.As regards the appellant’s allegation that the court misdirected itself by holding that the mere fact that the he was placed on his defence, was evidence of probable cause to arrest and charge the appellant on this case. It was submitted that an accused can only be placed on his defence if the prosecution has established a prima facie case against the accused person. That a prima facie case was defined in the case of Republic v Manza & another (Criminal Case E047 of 2023) [2025] KEHC 2988 (KLR) (12 March 2025) (Ruling) where the court held;“Section 306 of the Criminal Procedure Code calls upon this Court to make a Ruling on whether the prosecution had established a prima facie on case warranting the accused person to be put on his defence or otherwise.”At this stage of the proceedings what the Court is required to do is to establish whether a prima facie case has been established and not proof beyond reasonable doubt. A prima facie case was defined in Republic v Abdi Ibrahim Owl [2013] KEHC 2122 (KLR) as follows:“Prima facie” is a Latin word defined by Black’s Law Dictionary, 8th Edition as “Sufficient to establish a fact or raise a presumption unless disproved or rebutted”. “Prima facie case” is defined by the same dictionary as “The establishment of a legally required rebuttable presumption”. To digest this further, in simple terms, it means the establishment of a rebuttal presumption that an accused person is guilty of the offence he/she is charged with. In Ramanlal Trambaklal Bhatt v R [1957] E.A 332 at 334 and 335, the court stated as follows: “Remembering that the legal onus is always on the prosecution to prove its case beyond reasonable doubt, we cannot agree that a prima facie case is made out if, at the close of the prosecution, the case is merely one “which on full consideration might possibly be thought sufficient to sustain a conviction.” This is perilously near suggesting that the court would not be prepared to convict if no defence is made, but rather hopes the defence will fill the gaps in the prosecution case. Nor can we agree that the question whether there is a case to answer depends only on whether there is “some evidence, irrespective of its credibility or weight, sufficient to put the accused on his defence”. A mere scintilla of evidence can never be enough: nor can any amount of worthless discredited evidence……. It is may not be easy to define what is meant by a “prima facie case”, but at least it must mean one on which a reasonable tribunal, properly directing its mind to the law and the evidence could convict if no explanation is offered by the defence.”That with the definition of what a prima facie evidence means, there is no doubt that when the appellant herein was placed on his defence, the prosecution had established a prima facie case, to mean, the evidence that was tendered by the prosecution was enough to convict the appellant unless the appellant gives an explanation to the charge raised against him. In this regard, the trial court was right to make a finding that the charge against the appellant was not malicious because the case proceeded until the appellant was placed on his defence in the said criminal case. 19.It was finally submitted that the trial court’s decision was well justified and that the court is urged to uphold the trial court’s decision. That the mere fact that the accused was acquitted of the criminal charges does not in itself mean the accused was charged maliciously. Reliance was placed in the case of Secretary, Board of Management Lugulu Mixed and Boarding Primary School & another v Mutanda (Civil Appeal E090 of 2023) [2024] where the court held;“The last element on whether the prosecution was actuated by malice In Nzoia Sugar Company Ltd v Fungututi [1988] KLR 399, the Court of Appeal held;“Acquittal per se on a criminal charge is not sufficient basis to ground a suit for malicious prosecution. Spite or ill-will must be proved against the prosecutor. The mental element of ill will or improper motive cannot be found in an artificial person like the appellant but there must be evidence of spite in one of its servants that can be attributed to the company.”The 1st Respondent therefore urged that the instant appeal be dismissed with costs. 20.The second Respondent’s submissions are dated 16/3/2026. Learned counsel raised one issue for determination namely whether the trial magistrate erred in law or fact in any of the seven grounds raised by the Appellant thereby warranting this court to interfere with the judgement dated 13/6/2025 and specifically malice. 21.It was submitted that the threshold required to prove malice have been clearly provided for in case law. That the elements of malicious prosecution were well established in law in Murunga vs The Hon. Attorney General (1976 – 1980) KLR 1251: where it was held:1)That a prosecution was instituted by the defendant or by someone for whose acts he is responsible.2)That the prosecution terminated in the Plaintiff’s favour.3)That the prosecution was instituted without reasonable and/or probable cause.4)That the prosecution was actuated by malice.It was submitted that all the elements apply jointly and must all be proven in order to successfully claim for damages for malicious prosecution. 22.As regards the aspect that a prosecution was instituted by the defendant or by someone for whose acts he is responsible, the element identifies the proper target of the suit, as it is only those who were actively instrumental in setting the law in motion that may be held accountable for any damage that results. In Gitau Vs. Attorney General [1990[ KLR 13 the court stated as follows regarding the law in motion:“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.”As to the prosecution of plaintiff, the 1st Respondent could not force the police officers at Yala Police station to do so when there was no evidence to take the Appellant to court. That the police carry out investigations independently before taking suspects to court and there are various incidents when the office of the director of public prosecutions has declined to prosecute a suspect when investigations have disclosed no offence to warrant this. In the current case, the Appellant avers in his statement that on 12/9/2023, he was arrested by the police officers from Yala and taken to Yala police station after the 1st Respondent made a complaint that the Appellant had damaged his pit latrine. The police conducted investigations and forwarded the file to the Office of the Director of public prosecutions where he was charged with malicious damage to property contrary to section 339(1) of the Penal Code. He was subsequently tried before Siaya Magistrate court in Criminal case No. E055 of 2020.In James Karuga Kiiru v Joseph Mwamburi & 2 others eKLR it was decided that:“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.” 23.As regards the aspect that the prosecution terminated in the Appellant’s favour, it was submitted that the Appellant has brought this suit for malicious prosecution because he was acquitted as per the judgement delivered on 23/11/2023. However, in Socfinaf Kenya Ltd. Vs Peter Guchu Kuria & Another KEHC 820 (KLR) the court held that: “That a suspect was acquitted of a criminal case is not sufficient ground for filing a civil suit to claim damages for malicious prosecution or false imprisonment. Evidence of spite, ill will, lack of reasonable and probable cause must be established.”Indeed, the mere fact that an accused was acquitted of a criminal charge does not in itself mean that the accused was charged maliciously. In the case of Secretary, Board of Management Lugulu Mixed and Boarding Primary School & another v Mutanda (Civil Appeal E090 of 2023) [2024] the court held;“The last element on whether the prosecution was actuated by malice was discussed in Nzoia Sugar Company Ltd v Fungututi [1988] KLR 399, where the Court of Appeal held;“Acquittal per se on a criminal charge is not sufficient basis to ground a suit for malicious prosecution. Spite or ill-will must be proved against the prosecutor. The mental element of ill will or improper motive cannot be found in an artificial person like the appellant but there must be evidence of spite in one of its servants that can be attributed to the company.” 24.As regards the aspect that the prosecution was instituted without reasonable and/or probable cause, reliance was placed in the case of Kagane & Others VS Attorney General & Another (1969) EA 643 which set the test for reasonable and probable cause. Citing Hicks vs. Faulkner, Herniman vs. Smith and Glinski vs. McIver the learned judge stated 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 reasonably lead an ordinary prudent and cautious man placed in the position of the accuser to the conclusion that the person charged was probably guilty of the crime imputed.It was contended that reasonable cause means the existence of facts, which on reasonable grounds, the plaintiff genuinely thought the criminal proceedings sufficed.In the instant case, the 1st Respondent stated that he found the Appellant at the scene where his pit latrine had been destroyed. That he found the Appellant had felled the walls of the latrine and was pushing the bricks to refill the pit latrine.It is after this scene that the 1st Respondent reported the matter to Yala Police station. After investigation, charges were drawn vide OB 03/23/08/2020 for the charges of malicious damage to property contrary to section 339(1) of the Penal Code. That four witnesses were called and they both testified. That while acquitting the plaintiff in Criminal case No. E055 of 2020, the court noted that the prosecution had failed to prove the case to the required standard.It was contended that from the foregoing, in prosecuting the Appellant, the state acted with reasonable or probable cause. That a crime/wrong was committed and the 1st Respondent reported to Yala police station. That the police were within their statutory duty to charge the Appellant herein. Also, the 1st Respondent was aggrieved and thus applying the objective test, reported the crime to the police.The 1st Respondent had reasonable cause to suspect that the Appellant had committed the offence as alleged. As had been intimated in the said judgement, that the Appellant was acquitted because the state failed to prove the case to the required standard, in itself cannot sustain a claim for malicious prosecution. 25.As regards the aspect whether the prosecution was actuated by malice, reliance was placed in the Court of Appeal case of Robert Okeri Ombeka v Central Bank of Kenya, Civil Appeal No. 105 of 2007 eKLR at paragraph 18 which referred to its decision in Jediel Nyaga vs Silas Mucheke, (CA NO. 59 OF 1987 (NYERI) (UR) where it was stated:“It is trite law that false arrest and false imprisonment may very well be found where prosecution is dismissed and the accused acquitted. Malicious prosecution may also be found where determination of prosecution was in favour of the accused i.e. in cases where the prosecution was withdrawn and the accused is not re-charged or where prosecution has been terminated with the acquittal of the accused.”Further, the court stated that:“Comparative judicial experience in other jurisdictions also shows an emerging legal principle that an acquittal or discharge in a criminal prosecution should not necessarily lead to a cause of action in malicious prosecution law suits.”Equally, in Vastu Company Limited v Mwangi (Civil Appeal 547 of 2019) KEHC 3006 (KLR) (Civ) it was stated that:“It is insufficient to simply state that the criminal proceedings were motivated by malice. There is a need to establish how the court’s procedure is being abused or exploited, as well as to indicate or show the foundation on which the respondent's rights were seriously threatened by the criminal prosecution. In the absence of concrete evidence that a criminal prosecution was a "abuse of process," a "manipulation," "amounts to selective prosecution," or any other process, or even that the respondent did not receive a fair trial as guaranteed by the Constitution it is not mechanical enough to conclude that the existence of an acquittal is sufficient to amount to a fair trial." 26.From the record and submissions of the parties herein, it is clear that the Appellant did not prove at the lower court that there was malice on the part of the defendants and specifically the police in the institution of the criminal case against him. The lower court correctly applied the law to the facts. The Appellant has failed to establish any basis upon which this Honourable Court should interfere with the judgement of the trial court.The appeal is therefore without merit. The same is dismissed in its entirety. Each party to bear their own costs. 27.I have considered the record of appeal and submissions tendered. I find the issue for determination is whether the Appellant proved his case on a balance of probabilities before the trial court. 28.It is noted that the Appellant had lodged his case in the lower court seeking damages for malicious prosecution. It was the view of the Appellant that the criminal proceedings mounted against him vide Siaya Chief Magistrate’s court Cr. Case No. E055 of 2020 had been actuated by malice on the part of the 1st Respondent herein. The threshold required to prove malice have been clearly provided for in case law. That the elements of malicious prosecution were well established in law in Murunga vs The Hon. Attorney General (1976 – 1980) KLR 1251: where it was held:1)That a prosecution was instituted by the defendant or by someone for whose acts he is responsible.2)That the prosecution terminated in the Plaintiff’s favour.3)That the prosecution was instituted without reasonable and/or probable cause.4)That the prosecution was actuated by malice.It is incumbent upon a party suing to ensure that all the elements apply jointly and must all be proven in order to successfully claim for damages for malicious prosecution.The threshold required for a case of malicious prosecution has been laid out in the case of Sylvanus Okiya Ongoro vs. Director of Criminal Investigations & 4 others [2020] eKLR, where the court held:“What I gather the petitioner to be complaining about is that his prosecution was malicious as it was unjustified. The principles governing a claim founded on malicious prosecution were laid down by Cotran, J in Murunga vs. Attorney General (1979) KLR, 138 as follows: -(a)The Plaintiff must show that the prosecution was instituted by the Defendant, or by someone for whose acts he is responsible;(b)The Plaintiff must show that the prosecution terminated in his favour;(c)The Plaintiff must demonstrate that the prosecution was instituted without reasonable and probable cause;(d)He must also show that the prosecution was actuated by malice.Similarly, in the case of Patrick Nyamuke Etori vs. National Police Service Commission & 2 others [2019] eKLR, the court addressed itself to proof of malicious prosecution. It observed:“That means the petitioner was actually complaining of malicious prosecution in this petition. However, for one to establish a case for malicious prosecution, he must prove that the prosecution had no legal basis and that it was actuated by malice.”The position was well stated in the case of Mbowa vs. East Mengo Administration [1972] EA 352, thus;“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.”The court went on to enumerate essential ingredients of the tort of malicious prosecution, namely;“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; and4.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.” 29.As regards the aspect that a prosecution was instituted by the defendant or by someone for whose acts he is responsible, the element identifies the proper target of the suit, as it is only those who were actively instrumental in setting the law in motion that may be held accountable for any damage that results. In Gitau Vs. Attorney General [1990[ KLR 13 the court stated as follows regarding the law in motion:“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.”As to the prosecution of the Appellant, the 1st Respondent could not force the police officers at Yala Police station to do so when there was no evidence to take the Appellant to court. That the police carry out investigations independently before taking suspects to court and there are various incidents when the office of the director of public prosecutions has declined to prosecute a suspect when investigations have disclosed no offence to warrant this. In the current case, the Appellant avers in his statement that on 12/9/2023, he was arrested by the police officers from Yala and taken to Yala police station after the 1st Respondent made a complaint that the Appellant had damaged his pit latrine. The police conducted investigations and forwarded the file to the Office of the Director of public prosecutions where he was charged with malicious damage to property contrary to section 339(1) of the Penal Code. He was subsequently tried before Siaya Magistrate court in Criminal case No. E055 of 2020.In James Karuga Kiiru v Joseph Mwamburi & 2 others eKLR it was 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.” 30.As regards the aspect that the prosecution terminated in the Appellant’s favour, it is noted that the Appellant brought the suit for malicious prosecution because he was acquitted as per the judgement delivered on 23/11/2023. However, in Socfinaf Kenya Ltd. Vs Peter Guchu Kuria & Another KEHC 820 (KLR) the court held that: “That a suspect was acquitted of a criminal case is not sufficient ground for filing a civil suit to claim damages for malicious prosecution or false imprisonment. Evidence of spite, ill will, lack of reasonable and probable cause must be established.”The Appellant filed the lower court suit for malicious prosecution because he was acquitted as per the judgement delivered on 23/11/2023. However, in Socfinaf Kenya Ltd. Vs Peter Guchu Kuria & Another KEHC 820 (KLR) the court held that: “That a suspect was acquitted of a criminal case is not sufficient ground for filing a civil suit to claim damages for malicious prosecution or false imprisonment. Evidence of spite, ill will, lack of reasonable and probable cause must be established.”Indeed, the mere fact that an accused was acquitted of a criminal charge does not in itself mean that the accused was charged maliciously. In the case of Secretary, Board of Management Lugulu Mixed and Boarding Primary School & another v Mutanda (Civil Appeal E090 of 2023) [2024] the court held;“The last element on whether the prosecution was actuated by malice was discussed in Nzoia Sugar Company Ltd v Fungututi [1988] KLR 399, where the Court of Appeal held;“Acquittal per se on a criminal charge is not sufficient basis to ground a suit for malicious prosecution. Spite or ill-will must be proved against the prosecutor. The mental element of ill will or improper motive cannot be found in an artificial person like the appellant but there must be evidence of spite in one of its servants that can be attributed to the company.”Indeed, the Appellant was acquitted of the charge by the trial court on the ground that the prosecution had not proved its case beyond reasonable doubt when it did not avail the requisite certificate under section 106B of the Evidence Act. The trial court had already proceeded with the matter and had in fact placed the Appellant on his defence after establishing that the prosecution had established a prima facie case against him. Hence, the fact that the Appellant was found to have a case to answer, is clear proof that the 1st Respondent’s complaint to the police at Yala was not made up but was indeed a genuine complaint deserving of investigation by the police thereby leaving no doubt that the 1st Respondent had colluded with the police to have the Appellant taken through a court process. In Susan Mutheu Muia Vs Joseph Makau Mutua [2018] eKLR Civil Appeal No. 128 of 2017, it was held:‘’Even if a complainant in a criminal case makes a malicious complaint, that malice cannot automatically be transferred to the prosecutor unless it is proved that there was collusion between the complainant and the prosecutor in bringing up the prosecution. The trial magistrate made a clear finding that there was no collusion between the complainant and the police who were the prosecutors. H absolved the police of the issue of malice. In the circumstances he could not make a finding that the prosecution was actuated by malice.’’ 31.As regards the aspect that the prosecution was instituted without reasonable and/or probable cause, the test was made in the case of Kagane & Others VS Attorney General & Another (1969) EA 643 which cited Hicks vs. Faulkner, Herniman vs. Smith and Glinski vs. McIver the learned judge stated 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 reasonably lead an ordinary prudent and cautious man placed in the position of the accuser to the conclusion that the person charged was probably guilty of the crime imputed.It was contended that reasonable cause means the existence of facts, which on reasonable grounds, the plaintiff genuinely thought the criminal proceedings sufficed.In the instant case, the 1st Respondent stated that he found the Appellant at the scene where his pit latrine had been destroyed. That he found the Appellant had felled the walls of the latrine and was pushing the bricks to refill the pit latrine.It is after this scene that the 1st Respondent reported the matter to Yala Police station. After investigation, charges were drawn vide OB 03/23/08/2020 for the charges of malicious damage to property contrary to section 339(1) of the Penal Code. That four witnesses were called and they both testified. That while acquitting the plaintiff in Criminal case No. E055 of 2020, the court noted that the prosecution had failed to prove the case to the required standard.It was contended that from the foregoing, in prosecuting the Appellant, the state acted with reasonable or probable cause. That a crime/wrong was committed and the 1st Respondent reported to Yala police station. That the police were within their statutory duty to charge the Appellant herein. Also, the 1st Respondent was aggrieved and thus applying the objective test, reported the crime to the police.Find that the first Respondent had reasonable cause to suspect that the Appellant had committed the offence as alleged. As had been intimated in the said judgement, that the Appellant was acquitted because the state failed to prove the case to the required standard, in itself cannot sustain a claim for malicious prosecution. 32.As regards the aspect whether the prosecution was actuated by malice, guidance must be found in case law. In the Court of Appeal case of Robert Okeri Ombeka v Central Bank of Kenya, Civil Appeal No. 105 of 2007 eKLR at paragraph 18 which referred to its decision in Jediel Nyaga vs Silas Mucheke, (CA NO. 59 OF 1987 (NYERI) (UR) where it was stated:“It is trite law that false arrest and false imprisonment may very well be found where prosecution is dismissed and the accused acquitted. Malicious prosecution may also be found where determination of prosecution was in favour of the accused i.e. in cases where the prosecution was withdrawn and the accused is not re-charged or where prosecution has been terminated with the acquittal of the accused.”Further, the court stated that:“Comparative judicial experience in other jurisdictions also shows an emerging legal principle that an acquittal or discharge in a criminal prosecution should not necessarily lead to a cause of action in malicious prosecution law suits.”Equally, in Vastu Company Limited v Mwangi (Civil Appeal 547 of 2019) KEHC 3006 (KLR) (Civ) it was stated that:“It is insufficient to simply state that the criminal proceedings were motivated by malice. There is a need to establish how the court’s procedure is being abused or exploited, as well as to indicate or show the foundation on which the respondent's rights were seriously threatened by the criminal prosecution. In the absence of concrete evidence that a criminal prosecution was an "abuse of process," a "manipulation," "amounts to selective prosecution," or any other process, or even that the respondent did not receive a fair trial as guaranteed by the Constitution it is not mechanical enough to conclude that the existence of an acquittal is sufficient to amount to a fair trial."The evidence that was presented to the trial court vide Siaya Cm Cr No. E055 of 2020 was clear that the 1st Respondent who was the complainant did not hatch up a story so as to fix the Appellant just because they had a land dispute. It must have been a genuine complaint worthy of investigations by the police. Hence, I find that there was no malice in the prosecution of the Appellant. 33.From the record and submissions of the parties herein, it is clear that the Appellant did not prove at the lower court that there was malice on the part of the defendants and specifically the police in the institution of the criminal case against him. I find that the trial court correctly applied the law to the facts. The Appellant has failed to establish any basis upon which this Honourable Court should interfere with the judgement of the trial court. 34.In the final analysis, it is my finding that the appeal is without merit. The same is dismissed in its entirety. Each party to bear their own costs. DATED AND DELIVERED AT SIAYA, THIS 19TH DAY OF JUNE 2026D. KEMEIJUDGEIn the presence of :M/s Barasa for Odhong .........................for AppellantOoro F..................................................for 1st RespondentM/s Odhiambo for Esendi.........................for 2nd RespondentM/s Maurine............................................Court Assistant