https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11163

Warutere v Attorney General & another (Civil Case 544 of 2012) [2026] KEHC 11163 (KLR) (Civ) (22 July 2026) (Judgment) Neutral citation: [2026] KEHC 11163 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Civil Civil Case 544 of 2012 JN Mulwa, J July 22, 2026 Between Miriam Waheti Warutere Plaintiff and The Honorable Attorney General 1st Defendant Equity Bank Limited 2nd Defendant Judgment 1.By a plaint dated 02/11/2012, Miriam Waheti Warutere (hereafter the Plaintiff) sued The Honorable Attorney General and Equity Bank Limited (hereafter the 1st & 2ndDefendants) seeking judgment as against the Defendants jointly and severally by way of-;a.A declaration that the prosecution of the Plaintiff was unlawful, oppressive and malicious.b.General Damages for unlawful, wrongful oppressive and malicious prosecution.c.Special damages for Kshs. 400,000/-d.Costs of the suit.e.Any other relief that the Court may deem just and fit to grant. 2.The Plaintiff averred that on or about 22/11/2006 she was arrested by police officers from the Banking Fraud Unit, detained at KICC Police Station and later Kileleshwa Police Station. On 23/11/2026, the Plaintiff alongside two (2) others were charged in Nairobi Chief Magistrate's Criminal Case No. 2180 of 2006 with the offence of Conspiracy to Defraud the 2nd Defendant contrary to Section 317 of the Penal Code and later the charge sheet was amended to include the offence of Stealing by Servant contrary to Section 281 of the Penal Code. 3.It was further averred that the 2nd Defendant which at one time was the Plaintiff’s employer gave false and misleading information to the police on transactions that were done more than a year prior to the Plaintiff’s arrest whereinafter the trial Court in its judgment noted that the Plaintiff’s prosecution was malicious and premised on biased investigations. 4.The Plaintiff went on to aver that by failing to carry out proper and independent investigation meanwhile relying on false and misleading statements from the 2nd Defendant, the police abdicated their legal duty thus portending malice on their part. 5.The Plaintiff averred that being a banker by profession, as a consequence of her arrest, she has been unable to engage in any meaningful employment due to Court attendances whereas the 2nd Defendant went on to circulate adverse information to other banks thereby forcing her to resign from ABC Bank where she had gained employment. 6.That as a consequence of the Defendants actions and finding of the criminal trial Court, that her incarceration and prosecution was malicious and unlawful, the Plaintiff holds both Defendants jointly and severally liable for the loss and damage she has suffered as a result of their actions. 7.The 1st Defendant filed a statement of defence dated 17/12/2012 denying the key averments in the plaint. Meanwhile averred in the alternative and without prejudice to the averments in the statement of defence that if the Plaintiff was arrested, charged and tried then the same was done lawfully devoid of any malice and in execution of a statutory duty after a complaint was made to the police and thorough investigations conducted consequent to which a reasonable and probable suspicion against the Plaintiff was drawn. It was equally averred that the suit was premature and does not conform to the mandatory statutory provisions of Section 13A of the Government Proceedings Act, to wit, a preliminary objection would be raised at the opportune moment for the suit to be struck out with costs. 8.The 2nd Defendant on its part filed a statement of defence dated 30/04/2013 equally denying the key allegations in the plaint meanwhile averred that the 2nd Defendant informed the police on the reasonable suspicion of theft since the Plaintiff’s conduct had led to the loss of monies that were entrusted to her by virtue of her employment. Therefore, the said arrest and subsequent prosecution of the Plaintiff were founded on a reasonable suspicion that the Plaintiff had committed a criminal offence. 9.The suit proceeded to full hearing during which only the Plaintiff and 2nd Defendant called evidence in support of the averments in their respective pleadings. Plaintiff’s Evidence 10.The Plaintiff testified as PW1. She began her evidence by identifying herself as a banker by profession however at the time was engaged as a businesswoman. She proceeded to adopt her witness statement dated 02/11/2012 as her evidence in chief meanwhile adduced into evidence the documents appearing in the Plainitff’s bundle of documents dated 02/11/2012, 17/10/2014 & 02/05/2017 as Pexh.1. 11.It was her evidence that she worked for the 2nd Defendant however upon her arrest and arraignment, her banking profession came to an untimely end. That the 2nd Defendant had alleged a fraudulent transaction carried out by her hence her arrest. She stated that at the time of her arrest she was working for ABC Bank as a teller whereas she had prior left the 2nd Defendant without any issues, concerns and was issued with a certificate of service. 12.That she only learnt about investigations in respect of the 2nd Defendant when police from the banking fraud unit arrested her. She went on to state that she was held in custody overnight and arraigned in Court the next day. Upon her return to ABC Bank she was confronted with allegations from Equity Bank and asked to resign. 13.She pointed out that at the end of the criminal Court proceedings she was acquitted of all charges. That the 2nd Defendant initiated the process of investigations whereinafter the 1st Defendant’s agents arrested and charged her, with the totality of the afforested being malicious. 14.She asserted that some pertinent witnesses were not involved in the criminal Court proceedings whereas the transactions in question were verified and supervised by her superior colleagues. Therefore, she was not the only person responsible for the transaction yet the others involved in the said transaction were not arraigned. 15.That the police did not conduct proper investigations and ought to have undertaken the latter independently whereas the transaction she was being accused of had been conducted more than a year prior to her arrest. Meanwhile, her prosecution took close to six (6) years which hindered her ability to work in any bank during the ensuing period. She concluded by stating that having only trained as a banker she could not gain employment in any other bank or within the banking industry given the aforestated. 16.On cross-examination, she confirmed having been arrested, detained for one (1) night and was arraigned in Court the following day. She maintained it was the third accused in the criminal case that processed the transferred funds in question, that she only proceeded to carry out the transaction as per the instructions. It was her evidence that the accounts in question were suspense accounts whereas despite the witnesses in the criminal trial trying to connect her to the suspicious transaction she reasonably believes that the police failed to carry out proper investigations. 17.She went on to state that she resigned from 2nd Defendant’s employment and was not dismissed, meanwhile confirmed having been placed on her defence in the criminal matter. She iterated that the police were malicious in their investigations, as they did not arrest everyone who was involved in the transaction. 18.It was her evidence that at any given point she applied for a job with other banks they would enquire about her period of employment at the 2nd Defendant therefore the latter must have relayed information concerning her employment. In conclusion, she confirmed that she did not have any material evidence to demonstrate that the 2nd Defendant was conveying information that concerned her. 19.In re-examination, she stated that if it were not for the 2nd Defendant she would still be in employment nevertheless confirmed that it was normal for banks to share information. She maintained that the queried transactions were not solely undertaken by her alone, to wit, not less than four people were involved in the said transaction by way of posting, supervision and verification. Therefore, the investigators were malicious for solely picking her out toward preferring charges. 20.In summation, she stated that the criminal proceedings demonstrated that the transactions in question were regular whereas given that the 2nd Defendant was the complainant the subsequent investigation by the police were malicious. 21.The 1st Defendant did not call any evidence. 2nd Defendant’s Evidence 22.On behalf of the 2nd Defendant, Samuel Wamaitha, an Assistant Manager - Legal at the 2nd Defendant, testified as DW1 meanwhile proceeded to adopt his witness statement dated 04/02/2026 as his evidence in chief. The gist of his adopted witness statement was that the Plaintiff was an employee of the 2nd Defendant when it was suspected that she had committed a criminal office owing to the loss of monies entrusted to her by virtue of her employment. 23.That the Banking Fraud Investigation Unit was alerted and upon completion of investigation, the Plaintiff was charged in Court, that upon her evidence, the court made a finding that the prosecution had established a prima facie case therefore she was placed on her defence. He confirmed that the Plaintiff was indeed acquitted however emphasized that the 2nd Defendant does not have the power to investigate, prosecute or charge any person suspected to have committed a crime. It was further its evidence that the 2nd Defendant only lodged a complaint and provided witnesses meanwhile had no role in the investigations by the police therefore the suit against the 2nd Defendant is misconceived. 24.In conclusion, he iterated that the Plaintiff having been put on her defence demonstrates that the criminal Court was convinced that the prosecution had established a prima facie case on their part. 25.On cross-examination, he stated that he had worked for the 2nd Defendant for close to thirteen (13) years however at the material time to the suit he was not an employee of the 2nd Defendant therefore his evidence and knowledge of the incident in question was premised on documentations in his possession. 26.He stated that the issue concerned suspicious transactions in respect of a suspense account wherein there were debits without proper authorization. An amount in the sum of Kshs. 577,000/- was transferred from the 2nd Defendant’s Community Branch to its Mama Ngina Branch whereas the Plaintiff having been based in the former Branch, as a cash officer, did not have the requisite debit instructions. He went on to state that as concerns the sum of Kshs. 500,000/- the same was illegally transferred. That the Plaintiff was the custodian of transactions for the day that entailed approving debit transactions. He further maintained that there was reason for the 2nd Defendant to lodge a complaint with the police whereas the latter’s own reconciliation of its accounts found that the Community Branch suspense account had been irregularly debited and credited to individuals at Mama Ngina Branch. 27.That it was the 2nd Defendant’s head of security that lodged the complaint in respect of loss of money to the tune of Kshs.1,180.100/-. He confirmed that there were other people involved in the transaction who were not charged and was equally unaware that some transitioned into being prosecution witnesses. 28.In re-examination, he was categorical that the 2nd Defendant played no role as to who would be charged in respect of its complaint.At the close of the trial, parties were accorded an opportunity to file submissions. Only the Plaintiff and 2nd Defendant complied. Plaintiff’s Submissions 29.Counsel for the Plaintiff began his submissions by restating the history of the matter, pleadings and evidence by the respective parties meanwhile condensed his submissions in two (2) cogent issues; on liability and quantum of damages. 30.Addressing the Court on liability, specifically on whether the Plaintiff’s prosecution was malicious, counsel began by pointing out that all the constituent ingredients of the tort of malicious prosecution had been established. 31.Submitting on the issue of institution of criminal proceedings as against the Plaintiff, while calling to aid the English decision in Martin v Watson [1996] AC 74, the decision in Murunga v Attorney General [1979] KLR 138 and Simiyu v Attorney General & 3 Others [2024] KEHC 16374 (KLR) counsel argued that although the criminal proceedings were formally instituted by the police through the Bank Fraud Unit, the 2nd Defendant was not merely a passive complainant. 32.That the prosecution originated from the 2nd Defendant's complaint, internal investigations and reports, which formed the factual basis upon which the police acted. Counsel contended that the police substantially adopted the 2nd Defendant's narrative without conducting independent investigations, thereby making both Defendants jointly and severally liable for the ensuing prosecution. 33.Submitting on termination of the criminal proceedings in favour of the Plaintiff, it was posited that the Plaintiff’s was acquitted vide a decision delivered on 03/12/2011. That the significance of the acquittal lies not merely in the outcome but in the findings underpinning it. Counsel argued that the criminal trial Court expressly criticized the investigation by finding that it was biased, selectively prosecuted suspects, failed to call material witnesses and absence of coherent evidential basis therefore these findings provide evidential support for the present claim beyond merely demonstrating favourable termination. 34.Submitting on whether the Plaintiff’s prosecution was without reasonable and probable cause, counsel relied on the decisions in Kagane v Attorney General (1969) EA 643 and Gitau v Attorney General [1990] KLR 13 to argue that several individuals participated in the impugned banking transactions, yet only selected persons were charged while others became prosecution witnesses, with no rational explanation for the distinction. Counsel further contended that the criminal Court criticized the failure to call material witnesses, demonstrating that investigations were directed at securing a conviction rather than discovering the truth. 35.Counsel went on to assert that the Bank Fraud Unit simply adopted the 2nd Defendant's internal reports without independent verification, thereby abdicating its investigative responsibility. Meanwhile, the additional counts of stealing by servant were introduced through amendment of the charge sheet without any fresh evidential basis, demonstrating that the prosecution was expanded without justification. 36.Submitting on whether the prosecution was actuated by malice, counsel cited the decision in Sylvanus Okiya Ongoro v Director of Criminal Investigations & 4 Others [2020] KEHC 5855 (KLR) to point out that the criminal Court expressly found that the investigations were biased; that certain persons were selectively charged while others equally implicated became prosecution witnesses; and that after the Plaintiff's arrest, the 2nd Defendant circulated adverse information concerning her within the banking industry, resulting in the loss of alternative employment at ABC Bank. Therefore, the above demonstrate that the prosecution was motivated by improper considerations rather than a genuine belief in her guilt. 37.Addressing the Court on awardable damages, specifically on general damages, counsel called to aid the of-cited decision in Hahn v Singh (1985) KLR 716 to posit that the Plaintiff’s claim on special damages of Kshs. 400,000/- as expended legal fees in her defence of the criminal matter was specifically pleaded and proved. 38.Submitting on general damages, counsel contended that the Plaintiff’s prosecution caused extensive injury to her professional reputation, livelihood, mental wellbeing and career progression. That the Court ought to consider the five (5) year duration of the prosecution, her status as a senior banking professional, the psychological distress suffered, and the reputational harm occasioned by the 2nd Defendant’s circulation of adverse information throughout the banking industry. 39.Regarding aggravated damages, counsel submitted that the 2nd Defendant's conduct was oppressive and calculated because it allegedly circulated adverse information while the criminal proceedings remained pending thereby ensuring that she would remain unemployable regardless of the outcome of the trial, 40.As regards exemplary damages, it was submitted that the 2nd Defendant improperly employed the criminal justice system against its own employee, while officers of the 1st Defendant abandoned their obligation to conduct independent investigations and instead became instruments of the 2nd Defendant's alleged vendetta. 41.Counsel therefore urged the Court to award a global sum of Kshs.10,000,000/- comprising general, aggravated and exemplary damages. The decisions in Gitobu Imanyara v Attorney General [2016] eKLR, Muchelule v Inspector General of Police & 2 Others; Director of Public Prosecutions (Interested Party) [2026] KEHC 781 (KLR), Michael Kagoma Maina v The Hon. Attorney General [2012] eKLR, Teresia Njoroge v Standard Chartered [2015] eKLR and Grace Kiboi Mwihaki v Standard Group Limited & Another [2019] eKLR were all cited in the latter regard. 42.Penultimately, addressing the respective defences by the Defendants, counsel assailed the 1st Defendant’s defence by arguing that the issue before this Court is not whether the police possessed statutory authority to investigate and prosecute, but whether those powers were exercised lawfully, reasonably and upon a proper evidential foundation. 43.That biased investigations, failure to interview material witnesses, adoption of the complainant's narrative without scrutiny and prosecution upon insufficient evidence amounted to an unlawful exercise of statutory power. Further, pursuant to Section 4 of the Government Proceedings Act the Government is vicariously liable for the tortious conduct of police officers acting within the course of their employment. 44.Assailing the 2nd Defendant’s defence, the Plaintiff rejected the characterization of the latter as a passive complainant, maintaining that it supplied the factual foundation of the prosecution through its internal investigations and witnesses. Counsel further maintained that the Plaintiff does not merely rely upon the fact of her acquittal but upon the criminal trial Court's substantive findings of investigative bias, inadequate evidence and selective prosecution, which establish each element of the tort of malicious prosecution. The Court was therefore urged to allow the Plaintiff‘s suit as prayed. 2nd Defendant’s Submissions 45.On the part of the 2nd Defendants, counsel summary addressed the constituent ingredients as submitted on by the Plaintiff. Addressing the Court on whether Plaintiff established a factual basis for malicious prosecution, counsel submitted that the Plaintiff failed to prove that the 2nd Defendant provided false or misleading information to the police or that it maliciously caused her prosecution. That the criminal charges arose from banking transactions undertaken by the Plaintiff during her employment whereas the Bank had suffered an undisputed financial loss. 46.It was further submitted that the Plaintiff produced no evidence that the Bank circulated adverse information to a prospective employer meanwhile the Plaintiff’s documentary evidence shows that she resigned from ABC Bank before her arrest. Accordingly, counsel put it that the Plaintiff, failed to establish any factual basis for liability against the 2nd Defendant 47.On whether the Plaintiff proved malicious prosecution as against the 2nd Defendant while calling to aid the decision Gilbau v Attorney General (1990) KLR 13 as cited in Kenya Power & Lighting Company Limited v Tom Juma Kibanga & Another [KEHC] 4251 (KLR) counsel summarily posited that the plaint contains only general allegations of malice and fails to particularize the facts constituting malicious prosecution. That liability can only arise where a defendant actively sets the criminal law process in motion without reasonable and probable cause, which has not been demonstrated. 48.Submitting on the role of the 2nd Defendant leading up to prosecution of the Plaintiff, counsel argued that reporting the loss of funds did not amount to instituting criminal proceedings. That the police independently investigated the complaint, determined who should be charged, and exercised their own statutory discretion, that the report was justified by the undisputed financial loss and the Plaintiff's admitted involvement in the impugned transactions, and therefore cannot constitute malicious prosecution. 49.On whether there was abuse of the criminal process, counsel posited that the Plaintiff failed to demonstrate that the 2nd Defendant’s complaint lacked a factual basis or that it abused the criminal process, and thus urged the Court to recognize the Bank's right to report suspected criminal conduct where there exist honest and reasonable grounds for doing so. 50.In summation, it was counsel’s position that the Plaintiff failed to demonstrate any culpability as against the 2nd Defendant and cannot therefore be entitled to any of the remedies sought in the plaint urging for the dismissed with costs. Analysis and Determination 51.The Court has carefully considered the respective parties’ pleadings, the evidence adduced by respective witnesses, and the parties' written submissions, to wit, the Court crystallizes the following as the Issues for determination-:a.Whether the Plaintiff has made out a case of malicious prosecution as against the Defendants?b.Whether the Plaintiff is entitled to the reliefs sought?c.Who ought to bear costs? Whether the Plaintiff has made out a case of malicious prosecution as against the Defendants? 52.At the heart of the suit is a determination whether the Plaintiff has established on a balance of probabilities that her prosecution as instigated was malicious by design, without reasonable and or probable cause. 53.Pertinent to the determination of the said issue are the pleadings, which forms the basis of the respective parties’ case before this court. See-; Wareham t/a A.F. Wareham & 2 Others v Kenya Post Office Savings Bank [2004] 2 KLR 91.Akin to pleadings is evidence in support of the pleadings. The applicable law as to the burden of proof is found in Section 107, 108 and 109 of the Evidence Act. In Karugi & Another v Kabiya & 3 Others (1987) KLR 347 the Court of Appeal stated that-:“[T]he burden on a plaintiff to prove his case remains the same throughout the case even though that burden may become easier to discharge where the matter is not validly defended and that the burden of proof is in no way lessened because the case is heard by way of formal proof….The plaintiff must adduce evidence which, in the absence of rebuttal evidence by the defendant convinces the court that on a balance of probabilities it proves the claim.” 54.As stated earlier, the Plaintiff’s cause of action is founded on malicious prosecution. Further, it is trite that the conjunctive elements to be proved in an action founded on malicious prosecution are well settled since Mbowa v. East Mengo District Administration [1972] EA 352, where the East African Court of Appeal summarized the law 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 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 other words, the defendant must have acted, in instituting criminal proceedings, with an improper and wrongful motive, that is, he must have had, “an intent to use legal process in question for some other than its legally appointed and appropriate purpose” Pike v. Waldrum [1952] 1 Lloyd’s Rep. 431 at p. 452; 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...”See also Murunga (supra) 55.Patently, the above ingredients must be established for a claimant to succeed in a cause of action founded on malicious prosecution. That said, the undisputed facts as between the parties are that the Plaintiff was an employee of the 2nd Defendant and that following the discovery of alleged irregular banking transactions and financial loss, the 2nd Defendant lodged a complaint with the Banking Fraud Unit of the Kenya Police. 56.That the police investigated the complaint, arrested the Plaintiff on or about 22/11/2006 and charged her in Nairobi Chief Magistrate's Criminal Case No. 2180 of 2006 with offences including Conspiracy to Defraud contrary to Section 317 of the Penal Code and Stealing by Servant contrary to Section 281 of the Penal Code. 57.It is equally common ground that the Plaintiff underwent a criminal trial and was put on her defence, which culminated in her acquittal on 03/12/2011. Thus, it is on the premise of the above facts that this Court finds itself presented with instant proceedings as against the Defendants, to wit, the reasonable deduction that can be garnered from the aforestated is that the criminal proceedings terminated in favour of the Plaintiff. In essence, resolving ingredient (4) in Mbowa (supra). 58.However, as an issue in limine, the Court believes it prudent to first dispense with the issue whether the 2nd Defendant set into motion the criminal proceedings as against the Plaintiff?At the outset, it is obvious DW1’s evidence was of no consequence to the integral events leading up to the Plaintiff’s suit given that he readily admits that he joined the 2nd Defendant 2013 whereas from the facts the events leadings up to the Plaintiff’s arrest and eventual prosecution transpired in 2005/2006. 59.He equally confirms from his knowledge and documentary evidence, that at the material time relevant to the matter, upon the 2nd Defendant carrying out its internal investigations, certain suspicious transactions were uncovered in respect of a suspense account at one of the 2nd Defendant’s branches. That as a consequence of the afforested, the 2nd Defendant only lodged a complaint with the Banking Fraud Investigation Unit, provided witnesses meanwhile had no role in the investigations and prosecution by the police. 60.A cursory review of judgment and proceedings in Nairobi Chief Magistrate's Criminal Case No. 2180 of 2006 appearing at Pexh.1, it can be garnered therefrom, that the 2nd Defendant (through PW1 in criminal trial proceedings - one Major (Rtd) Marcus Mutua who at the time was the Head of Security at Equity Bank), carried out investigations in respect of certain suspicious transactions which involved movement of funds by the Plaintiff and her two (2) other co-accused from the 2nd Defendant’s suspense account at Community Branch to the latter’s Mama Ngina Branch. 61.Upon tracing the raft of suspicious transactions concerning the Plaintiff and her two (2) other co-accused, Major (Rtd) Marcus Mutua handed over the matter to Mr. Mirungu Ng’anga and Mr. Karibia (Head of Operation and IT respectively at the 2nd Defendant) to conduct further investigations. 62.Meanwhile, PW8 in the criminal proceedings John Eliya, testified that at the time, he was serving as an officer within the Banking Fraud Investigations Unit. That he was called by its director, Mr. Francis Okonya, who introduced him to Major (Rtd) Marcus Mutua, who had made a complaint about certain suspicious transactions by the 2nd Defendants staff. That thereafter, the latter began investigations, which took him to the 2nd Defendant’s headquarters, wherein he recorded statements of the prosecution witnesses in respect of the criminal trial proceedings. I likewise gather from the bundle of the Plaintiff’s documents, adduced as Pexh.1, that John Eliya, was the investigating officer in the matter.As has been pointed out in this judgment, it is John Eliya, who upon receiving a complaint from Major (Rtd) Marcus Mutua, undertook investigations later arresting and charging the Plaintiff alongside her co-accused. 63.As stated in Mbowa (supra),“…..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”. 64.The 2nd Defendant conducted its internal investigation and it appears that it later referred the matter to investigative authorities to carry out investigations and prosecution, if necessary. It is only after the 2nd Defendant lodged a complaint that the 1st Defendant’s agents acted towards arresting the Plaintiff alongside others whereafter they were arraigned and charged in Court.In light of the aforestated, it would be difficult in my view to arrive at the determination that the 2nd Defendant instituted the criminal proceedings leading to the arrest, detention and eventual prosecution of the Plaintiff. 65.Having dispensed with the above, what presents for consideration at this juncture is whether the 1st Defendant’s agents acted without reasonable or probable cause and acted maliciously thus leading to the prosecution of the Plaintiff?As stated elsewhere in this judgment, the 1st Defendant opted not to call evidence in support of the averments in its statement of defence. Notwithstanding the latter’s omission, I must repeat that, as observed in Karugi (supra) the plaintiff must adduce evidence which, in the absence of rebuttal evidence by the defendant, convinces the Court that on a balance of probabilities it proves the claim. The Court of Appeal in Wareham t/a A.F. Wareham (supra) likewise pithily put it that, where a party with the burden of proving its evidence on a balance of probabilities fails to discharge such a burden, its case ought to be dismissed. 66.To the above end, according to Halsbury’s Laws of England, 4thEdition – Reissue, Vol.45 (2):-“[Reasonable and probable cause for a prosecution has been said to be an honest belief in the guilt of the accused person based on a full conviction, founded upon reasonable grounds, of the existence of a state of circumstances which, assuming them to be true, would reasonably lead any ordinary prudent and cautious man, placed in the position of an accuser, to the conclusion that the person charged was probably guilty of the crime”. 67.In Murunga (supra) the Court applied the test in Kagane (supra), namely that, whether there was a reasonable and probable cause for the prosecution is primarily to be judged on the objective question whether the material known to the prosecutor would satisfy a prudent and cautious man that the accused was probably guilty. 68.The Plaintiff’s evidence had earlier been set out in this judgment. DW1’s evidence was the effect that the Plaintiff was a cash officer at the 2nd Defendant’s branch at Community. The latter was equally corroborated by the proceedings in Pexh.1 wherein the Plaintiff testified that she was first employed as a bank teller at the 2nd Defendant and at the material time relating to her prosecution, was an acting cash officer at the 2nd Defendant’s Branch at Community. 69.What this Court gathers from the totality of evidence presented before it, is that the Plaintiff’s charges concerned conspiracy to defraud the 2nd Defendant the sum of Kshs. 1,180,100/- and the charges relating to stealing by servant, on diverse dates, in respect of the total sum of Kshs. 2,234,000/-.It is equally apparent from the proceedings and judgment in Nairobi Chief Magistrate's Criminal Case No. 2180 of 2006 that by dint of the Plaintiff’s position and her 2nd Defendant’s assigned user Code - MW0368, she was accused of generating, verifying and transferring certain amounts that were at the heart of the investigations. 70.It was also the Plaintiff’s evidence before the criminal trial Court that she had been assigned the duty of posting entries in the 2nd Defendant’s system and that vouchers were given to her by the branch manager for purposes of posting. Therefore, by dint of the Plaintiff’s designation and the resultant investigations by the 1st Defendant’s agents, charges were preferred as against the Plaintiff, as earlier set out. 71.With the above in reserve, the question that begs is whether there was reasonable or probable cause for charges being preferred as against the Plaintiff?It is pertinent to restate that the Plaintiff was charged alongside two other co-accused with similar offences however over varied amounts save for the offence of conspiracy to defraud the 2nd Defendant, which amount, cut across the accused persons.The Plaintiff vide her evidence before this Court made heavy use of the fact that the Defendants conjured false allegations against her, which led to her arrest and prosecution without lawful cause.Though I do not concur with the above proposition given the Plaintiff’s designation at the 2nd Defendant, I do concede that in verifying and or posting transactions, she was merely performing her duties. 72.Nevertheless, no explanation was offered for the role she played with respect to the accusations concerning generation of certain transactions and transfer of funds to an account that it would appear, was believed by investigators, to be a fictitious account purposefully used to syphon and withdraw funds, from the 2nd Defendant suspense account. 73.Here, this Court concurs with the underscored duty of investigative agencies espoused in Monari & another v Commissioner of Police & another; Abubakar & another (Interested Parties) [2012] KEHC 4595 (KLR) wherein it was stated that-:“The Police have a duty to investigate any complaint once it is made. Indeed the police would be failing in their constitutional mandate to detect and prevent crime. The police only need to establish reasonable suspicion before preferring charges. The rest is left to the trial court…….. As long as the prosecution and those charged with the responsibility of making the decisions to charge act in a reasonable manner, the High Court would be reluctant to intervene”. 74.Further, it was Major (Rtd) Marcus Mutua evidence before the criminal trial Court, that the vouchers central to the transactions in question could not be found thereby elevating suspicion. Whereas, I agree with the Plaintiff’s position that she was neither the custodian of the vouchers nor obligated to adduce the said voucher in her defence, the fact remains that some vouchers in respect of the transactions handled by the Plaintiff could not be traced hence, I believe, the preferred charge of conspiracy to defraud. 75.With the above in reserve while contemporaneously reviewing the evidence before this Court, it is reasonable to deduce that the Plaintiff by her designation was in a position to benefit from the offences she was accused of. 76.As to whether the prosecution could prove the charges in respect as against the Plaintiff, that was preserved for the criminal trial Court, of which, from the evidence before this Court was that the prosecution failed to prove its case beyond reasonable doubt.Despite the above finding in favor of the Plaintiff, the Court must still interrogate whether she demonstrated that the 1st Defendant’s agents acted without reasonable or probable cause. 77.As to what constitutes reasonable or probable cause, recently the Court of Appeal in Mukonya v Equity Bank Limited & Another [2025] KECA 1720 (KLR) observed that-;“What amounts to reasonable and probable cause is the existence of a state of circumstances that would reasonably lead a prudent and conscious accuser or prosecutor to the conclusion that the suspect is probably guilty of the crime he is accused of. The four elements are conjunctive so that even in the absence of reasonable and probable cause, still, the plaintiff must prove that the prosecution was actuated by malice. In this regard, while the absence of reasonable and probable cause may be indicative of the presence of malice, the plaintiff needs to do more to demonstrate that the prosecution was actuated by malice or motivated by some ulterior reason other than a genuine pursuit of justice for the victim or in public interest.” 78.Applying my mind to the latter rendition and fact, I reasonably believe there was reasonable and probable cause leading up to the Plaintiff’s arrest and subsequent prosecution.The 2nd Defendant having lodged a complaint, concerning suspicious transactions over funds held in its suspense account the 1stDefendant’s agents held a reasonable and probable cause, having conducted investigation, that there existed a state of circumstance that would reasonably lead to the conclusion that the Plaintiff was probably guilty of the crime she was accused of thus leading to her arrest and charges being preferred as against her. 79.That said, this Court has held time without number that reasonable or probable cause ought to be considered alongside the question of malice. Here, the Court of Appeal in Commissioner of Customs & Excise v Hasmukh Shamji Halai & 3 others [2018] KECA 669 (KLR) pronounced itself as follows; -“ 31.The final element for proof was malice. For it would not matter that there was an acquittal of the two respondents; that the commissioner was the instigator of the prosecution; and that there was no probable or reasonable cause for it, if it is established that there was no malice. All the elements must dovetail in order to establish a cause of action. As this Court stated in Nzoia Sugar Company Ltd vs Fungututi [1988] KLR 399:“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.” 32.In the Githaiga case (supra) the court explained as follows:-"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."Referring to the element of malice, the former East African Court of Appeal in the Mbowa case (supra) stated:-"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 purpose other than its legally appointed and appropriate purpose." (sic) 80.The same Court in Hassan Magiya Kiage v Attorney General & another [2017] KECA 203 (KLR) cited with approval the words of the Supreme Court of Canada in Nelles vs. Ontario [1989] 2SCR 170 to the effect that:“Finally, the initiation of criminal proceedings in the absence of reasonable and probable grounds does not itself suffice to ground a plaintiff’s case for malicious prosecution, regardless of whether the defendant is a private or public actor. Malicious prosecution, as the label implies, is an intentional tort that requires proof that the defendant’s conduct in setting the criminal process in motion was fueled by malice. The malice requirement is the key to striking the balance that the tort was designed to maintain between society’s interest in the effective administration of criminal justice and the need to compensate individuals who have been wrongly prosecuted for a primary purpose other than that of carrying the law into effect.” 81.Was there a demonstration of malicious collusion either out of spite or ill will, between the complainant and the prosecuting agency, to prosecute the Plaintiff?In this case, what I garner to be the Plaintiff’s contestation is that the 1st Defendant by failing to carry out proper investigations and relying on false and misleading information from the 2nd Defendant, the police abdicated their legal duty, from which vendetta and malice can be construed on their part. 82.Firstly, no evidence was led of malice or collusion between the Defendants when the 2nd Defendant lodged a complaint with the 1st Defendant’s agents, particularly, with an intent to use the legal process in question for some purpose other than its legally appointed and appropriate purpose.Secondly, given the Plaintiff’s designation, and the fact that-; the prosecution preferred to prosecute the Plaintiff alongside her co-accused to the exclusion of others; the prosecution opted to call others persons involved in transactions as prosecution witnesses; the prosecution failed to call pertinent witnesses such as those responsible for verification of transactions or vouchers; all cannot conclusively connote that the Plaintiff was maliciously prosecuted. 83.In any event, the trial Court’s conclusion that the Plaintiff prosecution was biased and absence of vigilance by the investigative officer in presenting the case was obiter on the part of Court, equally does not connote malice on the part of the prosecution.I must repeat here, that the Plaintiff ought to have demonstrated malicious collusion either out of spite or ill will between Defendants. This Court repeatedly held that shoddy investigations alone cannot in itself connote malice without the same being specifically proved alongside other factors. 84.Further, I reasonably believe that it is an established position within our jurisdiction that poor investigations may constitute evidence from which malice may be inferred, when coupled with other circumstances where it is demonstrated that there was a deliberate disregard of exculpatory evidence, absence of any honest belief of the accused’s guilt, fabrication of evidence, ulterior motive and any other analogous reasons to the aforestated. 85.Here, notwithstanding the trial Court’s decision, the onus was still on the Plaintiff to visibly and identifiably demonstrate malice. In any event, as stated elsewhere in this judgment, there was a reasonable and probable honest belief in the guilt of the accused person that would reasonably have led any ordinary prudent and cautious man, placed in the position of an accuser, to conclude that the person charged was probably guilty of the crime. Hence the complaint to police for investigation. 86.In my own evaluation of the trial evidence, the Plaintiff’s case did not rise to the standard of proof on a balance of probabilities of the ingredients necessary to establish a case of malicious prosecution against the Defendants.Or stated another way, under Section 107 of the Evidence Act, the burden of proof lay with the Plaintiff and because her evidence did not support the facts pleaded, she failed as the party with the burden of proof. 87.In the result, this Court finds the Plaintiff’s suit lacks merit. It is accordingly dismissed with no order as to costs. Orders Accordingly. DELIVERED, DATED AND SIGNED AT NAIROBI THIS 22ND DAY OF JULY 2026.……………………….JANET MULWA.JUDGE