https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9674

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **MILIMANI LAW COURTS** **CONSTITUTIONAL AND HUMAN RIGHTS DIVISION** **PETITION NO. E210 OF 2023** **BETWEEN** **STANLEY OMUHINDA MUNALA** **A.K.A ARSTARIKO OMUHINDA…………………………………PETITIONER** **AND** **INSPECTOR GENERAL OF** **NATIONAL POLICE SERVICE……….……………………..1ST RESPONDENT** **THE DIRECTOR OF PUBLIC PROSECUTIONS.…………2ND RESPONDENT** **THE ATTORNEY GENERAL………………………………..3RD RESPONDENT** **JUDGMENT** 1. Stanley Omuhinda Munala, in his petition dated 29th March 2023 seeks the following relief: 2. ***A declaration that the seizure and confiscation of Petitioner's mobile phone without warrants of search and without their consent was a violation of the Petitioner's fundamental rights to the protection and benefit of the law, to human dignity and to privacy guaranteed by Articles 27(1), 28 and 31 of the Constitution and applicable international human rights norms and instruments under Article 2(5) and (6) of the Constitution.*** 3. ***A declaration that the brutal arrest of the Petitioner and the verbal assaults visited on the Petitioner by the police officers at the time of arrest were violations of the Petitioner's fundamental rights to equal protection and equal benefit of the law, human dignity, privacy and freedom from all forms of violence and ill treatment guaranteed under Articles 27(1), 28 and 29(c).(d),(e) of the Constitution and applicable international human rights norms and instruments under Article 2(5) and (6) of the Constitution.*** 4. ***A declaration that the arrest of the Petitioner by police officers on the 2nd October 2017 without giving the him any reason/s for the arrest was a violation of the Petitioner's fundamental rights to equal protection and equal benefit of the law and rights of an arrested person guaranteed under Articles 27(1) and 49(1)(a)(i),(c) of the Constitution and applicable international human rights norms and instruments under Article 2(5) and (6) of the Constitution*** 5. ***A declaration that the erstwhile lawfulness of detention in remand of the petitioner pending trial in prison for Three Hundred and Eighty One (381) days between 3rd October 2017 and 19th October 2018 and incarceration in Prison upon conviction for Two Hundred and Seventy Three (273) days from 19th October 2018 to 19th July 2019 on Court orders was vitiated by the acquittal of the Petitioner in High Court Criminal Appeal No 191 of 2018 and the Petitioner is entitled to an effective remedy including damages for the said total period of sixty hundred and fifty four (654) days of deprivation of personal freedom and liberty under Article 29(a) and (b) of the Constitution and on the principle of ubi jus ibi remedium (there is no wrong without a remedy; where there is a right there is a remedy) and under applicable international human rights norms and instruments under Article 2(5) and (6) of the Constitution.*** 6. ***A declaration that the charging, arraigning and prosecution of the petitioner in Nairobi Chief Magistrate's Court Criminal Sexual Offence Case No. 39 of 2017 (Republic v Stanley Omuhinda Munala) on false, pretended, fabricated and trumped-up charges of Incest Contrary to Section 20(1) of the Sexual Offences Act No. 3 of 2006 and Indecent Assault Contrary to Section 11(1) of the Sexual Offences Act No. 3 of 2006 was arbitrary, highhanded, oppressive and a violation of the fundamental right of the petitioner to equal protection and equal benefit of the law guaranteed by Article 27(1) of the Constitution and under applicable international human rights norms and instruments under Article 2(5) and (6) of the Constitution.*** 7. ***A declaration that the charging, arraigning and prosecution of the petitioner in Nairobi Chief Magistrate's Court Criminal Sexual Offence Case No. No. 39 of 2017 (Republic v Stanley Omuhinda Munala) on false, pretended, fabricated and trumped-up charges of Incest Contrary to Section 20(1) of the Sexual Offences Act No.3 of 2006 and Indecent Assault Contrary to Section 11(1) of the Sexual Offences Act No. 3 of 2006 by the 2nd Respondent on the said false, pretended, fabricated and trumped-up charges whilst the 2nd Respondent knew or ought to have known that the prosecution was not supported by any serious or credible investigation or any iota of evidence, the prosecution was an abuse of the power of the 2nd Respondent and process of court in violation of Article 157(11) of the Constitution and the same amounted to an actionable malicious prosecution.*** 8. ***A declaration that the charging, arraigning and prosecution of the petitioner in Nairobi Chief Magistrate's Court Criminal Sexual Offence Case No. No. 39 of 2017 (Republic v Stanley Omuhinda Munala) on false, pretended, fabricated and trumped-up charges of Incest Contrary to Section 20(1) of the Sexual Offences Act No. 3 of 2006 and Indecent Assault Contrary to Section 11(1) of the Sexual Offences Act No. 3 of 2006 by the 2nd Respondent on the said false, pretended, fabricated and trumped-up charges which culminated to the Petitioner losing his employment deprived the petitioner the right to access financial services hence denying him the opportunity to self-support and sustenance contrary to Article 43(1) (a)(b)(c )(d)(e) and (f).*** 9. ***Special damages.. ...Kshs. 1,984,936.96/*** 10. ***General damages consequent to the declarations of violations of fundamental rights and freedoms in prayers (i) to (vii) above.*** 11. ***Exemplary, aggravated and/or punitive damages for oppressive, highhanded, malicious and unconstitutional conduct of the police.*** 12. ***costs of the Petition.*** 13. ***Interests on prayer (viii) from the date of filing suit and prayers (i) to (xi) from the date of judgment.*** 14. The petition is premised on grounds on the face thereof and supported by the petitioner’s affidavit sworn on even date. Facts disclosed in the petition are that the petitioner was charged, prosecuted, found guilty and convicted for the Offence of **Incest Contrary to section 20(1) of the Sexual Offences Act No. 3 of 2006 in Sexual Offence 39 of 2017 on 19th October 2018**. He appealed against the decision in Criminal Appeal No. 191 of 2018 and the Appeal was allowed and he was acquitted on 16th July 2019. 15. The petitioner has therefore brought a claim for malicious prosecution against the respondents. He contends that the 2nd respondent improperly exercised his constitutional and statutory mandate on the premise that the 2nd respondent proceeded to prosecute him despite having been supplied with evidence that exonerated him and relied on evidence of a minor who had been pre-coached. 16. The petitioner posits that in doing so, the respondents violated his rights under articles 27(1), 28, 29(c)and (e) of the Constitution. He states that he suffered untold social stigma, humiliation psychological trauma from being accused and convicted of committing a sexual offence against his own daughter. 17. The petitioner further asserts that his detention for 654 days from the date of his arrest until his acquittal amounted to unjustified and oppressive deprivation of personal liberty. During his incarceration, he developed hemorrhoids and that the criminal proceedings caused significant financial implications. 18. The petitioner states that he was dismissed from his employment with Nairobi City County during the subsistence of the case on account of desertion of duty. As a result, he was unable to service a loan with the Cooperative Bank of Kenya, leading to the loss of savings amounting to Kshs. 1,084,936.96. In addition, he incurred special damages in the sum of Kshs. 900,000 in legal fees, and the costs of prosecuting his case. **The 1st and 3rd respondents’ response** 1. The 1st and 3rd respondents opposed the petition through grounds of opposition dated 23rd October 2023. They contend that the petition lacks precision in setting out the alleged violations; it discloses no cause of action against them and therefore is not tenable against them. **The 2nd respondent’s response** 1. The 2nd respondent opposed the petition through grounds of opposition dated 20th April 2026. The 2nd respondent contends that the petition offends the doctrine of judicial restraint and constitutional avoidance on the premise that the petitioner’s remedy for the grievance raised lies in the Civil Court;it does not meet the threshold set out in *Anarita Karimi v Republic* [1979] eKLR and *Mumo Matemu v Trusted Society of Human Rights Alliance* [2013] eKLR and that he acted within his constitution mandate. 2. The 2nd respondent asserts that the mere fact that the High Court acquitted the petitioner on appeal, does not in any way imply that he acted with ulterior motive, that his actions were malicious and that he acted in bad faith. Further that the move to prefer the charges under the Sexual Offences Act, 2006 as was in public interest, in the interests of the administration of justice and it was for the need to avoid abuse of the legal process as the complainant was a minor or tender age (9 years). Hence no wrong doing can be attributed to the 2nd respondent. **The Petitioner’s submissions** 1. The petitioner has raised three issues for determination in his written submissions dated 1st October, 2024: - 2. ***whether the arrest and prosecution was illegal and unlawful or actuated by malice; and*** 3. ***whether it was done in violation of his constitutional rights and the general damages and orders the court should issue.*** 4. The petitioner submits that the petition is anchored on violations of articles 19, 20, 21, 23, 157, 165 and 244 of the Constitution, the foundation being that the petitioner was arrested and charged with an offence, convicted and later acquitted after appealing the conviction and sentencing of the lower court. He cites the decisions in ***Patrick Nyamuke Etori v National Police Service Comision & 2 others* [2019] eKLR and *Mbowa v East Mengo Administration* [1972] EA 352** on circumstances where malicious prosecution is committed and its ingredients. He submits that he was charged with the offence of incest contrary to section 20(1) of the Sexual Offence Act with an alternative charge of indecent act with child contrary to section 11 of the Sexual Offences Act in Criminal Case No. SO 39 of 2017; Republic Stanley Omuhinda Munala. 5. Further submission by the petitioner is that for the charge of incest to be approved by the 2nd respondent, it ought to have satisfied itself of three ingredients; that the petitioner and the complaint were related or fell within the prohibited degree of consanguinity; there must be a sexual act between the petitioner and complaint and that the sexual act must have caused penetration. 6. According to the petitioner, from the transcripts of the lower court and from the testimonies of Emmy Kosgey (PW3) and Dr. Joseph Maundu (PW7), it was demonstrated that the minor’s hymen was intact, a clear indication that there was no penetration. A key ingredient that should have been considered by the 2nd respondent before approving the charges against him. 7. The petitioner submits that he spent a period of 381 days in pre-trial detention and a further 273 days upon conviction pending appeal of the conviction and the life sentence due to high bond terms issued by the Court of Kshs. 500,000. 8. That if the material presented to the 2nd respondent by the 1st respondent was objectively analysed and considered and in proper exercise of its power under article 157 of the Constitution of Kenya, then the 2nd respondent would not have approved the charges against him from the onset. The 2nd respondent failed to satisfy the three core ingredients before approving the charge of incest, and in specific, failed to prove that penetration did occur. 9. The petitioner makes reference to the judgement in Criminal Appeal No. 191 of 2018; Stanley Muhinda Munala v the Republic where the court stated that the conviction on the main charge of incest was unsupported by medical evidence. He therefore contends that based on the foregoing facts, there was malice toward him by the 1st and 2nd respondents.He relies on *Bethwel Omondi Okal v Attorney General & another* [2018] eKLR that he has proved malicious prosecution. **The 1st and 3rd respondents’ submissions** 1. The 1st and 3rd respondents filed written submissions dated 21st November, 2025. They cite the decision in *Anarita Karimi Njeru (supra)* and *Mumo Matemu (supra*) for the contention that there is no measure of detail and clarity from the petitioner to demonstrate that they violated the petitioner’s rights. According to the 1st and 3rd respondents, the evidence before court by the petitioner indicates that the investigations were carried out and charges preferred which sustained a conviction in the trial court. That there is no basis for the petitioner to infer bad faith or malicious investigation on the part of the respondents. They assert that the petitioner has not demonstrated any investigative impropriety on the part of the 1st respondent to support his allegations. 2. The 1st and 3rd respondents submit that the Office of DPP is an Independent Office which has been given the mandate to prosecute criminal offenders pursuant to article 157 of the Constitution as read with section 6 of the ODPP. Further, the DPP has the sole discretion on the decision to charge as long as the same is founded on law and has regard to public interest. They maintain that the fact that his conviction was quashed on appeal is not sufficient proof that there was violation of his constitutional rights by the respondents. They urge the court to dismiss the petition with costs. **The 2nd respondent’s submissions** 1. The 2nd respondent in its submissions dated 24th April, 2026 submits that the petitioner’s grievances and the allegation of malicious prosecution can be ventilated in civil court. That the matters raised in the petition are not matters that can warrant the intervention of this court in view of the doctrine of restraint and constitutional avoidance. The petitioner has further failed to demonstrate how the 2nd respondent violated the provisions of articles 25(c), 26(1), (3), 27(1), (2),(4), 28, 29(a), (b), (d), 31(a), 49(1) and 50(e)of the Constitution and therefore falls in the face of the decision in *Anarita Karimi case (supra)* **Analysis and determination** 1. I have considered the petition, the responses and rival submissions. I find the following issues arising for determination: 2. ***Whether the petition offends the doctrine of constitutional avoidance*** 3. ***Whether the petition meet the threshold for a constitutional petition*** 4. ***Whether the petitioner has established the tort of malicious prosecution*** ***Whether the petition offends the doctrine of constitutional avoidance*** 1. The doctrine of constitutional avoidance does not divest the constitutional court of the jurisdiction to hear and determine a matter. What the doctrine means is that while the constitutional court can indeed hear and determine a matter placed before it, it restrains itself to hear the same because there is another appropriate forum that can hear and determine the matter effectively. In deciding whether there is another appropriate forum, the constitutional court asks itself whether the issues before it raise a constitutional question. 2. The question as to what constitutes a constitutional question was determined in the case **CNM V WMG [2018]** eKLR where J. Mativo stated: ***18. It is important to address the question whether or not this Petition raises constitutional issues at all. A constitutional question is an issue whose resolution requires the interpretation of a constitution rather than that of a statute.******[[16]](https://new.kenyalaw.org/akn/ke/judgment/kehc/2018/8434/eng%402018-02-22%22%20%5Cl%20%22_ftn16%22%20%5Co%20%22) ...*** 1. The case in **Lugo v Director of Public Prosecutions [2022] KEHC 10574 (KLR)**the Court observed as follows: ***“Courts will not normally consider a constitutional question unless the existence of a remedy depends on it; if a remedy is available to an applicant under some other legislative provision or on some other basis, whether legal or factual, a court will usually decline to determine whether there has been, in addition, a breach of the Declaration of rights.*** ***Currie and de Waal opine that the principle of constitutional avoidance is of crucial importance in the application of the Bill of Rights. The author states: -*** ***“When applying the Bill of Rights in a legal dispute, the principle of avoidance is of crucial importance. As we have seen, the Bill of Rights always applies in a legal dispute. It is usually capable of direct or indirect application and, in a limited number of cases, of indirect application only. The availability of direct application is qualified by the principle that the Bill of Rights should not be applied directly in a legal dispute unless it is necessary to do so.”*** ***11. An important and critical issue arises from the above statements by Currie and de Waal. It is a fact that every legal dispute is capable of either direct or indirect application of the Bill of Rights. Every dispute is essentially a constitutional issue when one looks at it. This arises necessarily because of the principle of constitutional supremacy. One needs to be aware, however, of the singleness of the legal system. This is embodied in the fact that the supremacy of the Constitution does not detract from the usefulness of the rest of the body of law. In essence, all other laws give full expression to the ideals of the Constitution until found to be inconsistent with it.*** *….* ***The exceptions to the application of the doctrine of constitutional avoidance are: -*** ***i. where the constitutional violation is so clear and of direct relevance to the matter,*** ***ii. in the absence of an apparent alternative form of ordinary relief and*** ***iii. where it is found that it would be a waste of effort to seek a non-constitutional resolution of the dispute.”*** 1. Similarly, in **C O D & another vs Nairobi City Water & Sewerage Co. Ltd [2015] KEHC 7762 (KLR)** the Court noted as follows: ***“11. Similarly, in Papinder Kaur Atwal -vs- Manjit Singh Amrit Nairobi Petition No. 236 of 2011where after considering several authorities on the issue, Justice Lenaola remarked as follows:*** ***“All the authorities above would point to the fact that the constitution is a solemn document, and should not be a substitute for remedying emotional personal questions or mere control of excesses within administrative processes….. I must add the following; Our Bill of Rights is robust. It has been hailed as one of the best in any Constitution in the World. Our Courts must interpret it [with] all the liberalism they can marshall. However, not every*** *pain* ***can be addressed through the Bill of Rights and alleged violation thereof.” (Emphasis added)*** ***12. The Supreme Court of India has also held that ordinary remedies available under common law and statutes must be pursued in the ordinary manner or as provided under statute. For instance, in Re Application by Bahadur[1986] LRC (Const) the Court expressed itself as follows at page 307;*** ***“The Courts have said time and again that where infringements of rights are alleged which can be founded in a claim under substantive law, the proper course is to bring the claim under such law and not under the Constitution. This case highlights the un-wisdom of ignoring that advice.... The Constitution sets out to declare in general terms the fundamental concepts of justice and right that should guide and inform the law and the actions of men. While an infringement of the Constitution might in certain cases give rise to the redress provided for at section 14, yet, as has been proclaimed by the highest Court in the land, it is not, “a general substitute for the normal procedures for invoking judicial control of administrative action.” (See Harrikissoon v A-G [1979] 3 WLR 62).*** ***13. It was further observed in the case of Minister of Home Affairs vs Bickle & Others (1985) LRC Const(per (Georges C.J);*** ***“Courts will not normally consider a constitutional question unless the existence of a remedy depends on it; if a remedy is available to an applicant under some other legislative provision or on some other basis, whether legal or factual, a Court will usually decline to determine whether there has been in addition a breach of the Declaration of Rights.”*** 1. The Court went on in the above case to state as follows: ***“14. The law above is crystal clear that where there exist sufficient and adequate mechanisms or forums to deal with a specific issue or dispute by other designated constitutional organs or under a statute, the jurisdiction of the High Court under Article 165(3) (b) of the Constitution should not be invoked until such mechanisms have been exhausted. To my mind therefore, not every litigant ought to come to court by way of a constitutional petition even where there are no constitutional issue arising and where there are adequate remedies provided in other laws to determine such situations.*** ***15. The Constitution cannot be used as a general substitute for the normal procedures. The mere allegation that a human right has been contravened is not itself sufficient to entitle the applicant to*** *invoke the jurisdiction of the High* ***Court under Article 165 of the Constitution: See Harrikissoon v A-G [1979] 3 WLR 62. Where it is possible to decide any case or dispute, civil or criminal, without reading a constitutional issue then that is the course that should be followed. The court sitting as a constitutional court must through the doctrine of avoidance steer clear of determining such disputes as if there were constitutional questions being raised: see S v Mhlungu[1995] 3 SA 867 (CC) and also Ashwander v Tennessee 297 US 288.”*** 1. Obviously, this petition is speaking to the issue of malicious prosecution. It does not raise constitutional questions and the remedy can be issued in a civil court. The petition therefore offends the doctrine of constitutional avoidance. ***Whether the petition meet the threshold for a constitutional petition*** 1. The test for a constitutional petition is premised on a satisfaction of the specificity and precision requirement while drafting the petition. This was established by Court in **Anarita Karimi Njeru vs Republic (1979) KLR 154** as follows: ***“We would, however, again stress that if a person is seeking redress from the High Court on a matter which involves a reference to the Constitution, it is important (if only to ensure that justice is done to his case) that he should set out with a reasonable degree of precision that of which he complains, the provisions said to be infringed, and the manner in which they are alleged to be infringed.”*** 1. This test was affirmed by the Supreme Court in **Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others [2014] eKLR**as follows: ***“[349] …. Although Article 22(1) of the Constitution gives every person the right to initiate proceedings claiming that a fundamental right or freedom has been denied, violated or infringed or threatened, a party invoking this Article has to show the rights said to be infringed, as well as the basis of his or her grievance. This principle emerges clearly from the High Court decision in Anarita Karimi Njeru v. Republic, (1979) KLR 154: the necessity of a link between the aggrieved party, the provisions of the Constitution alleged to have been contravened, and the manifestation of contravention or infringement. Such a principle plays a positive role, as a foundation of conviction and good faith, in engaging the constitutional process of dispute settlement…”*** 1. In **Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others [2013] eKLR** the Court of Appeal in affirming the decision in Anarita stated; ***“…The principle in Anarita Karimi Njeru (supra) that established the rule that requires reasonable precision in framing of issues in constitutional petitions is an extension of this principle. What Jessel, M.R said in 1876 in the case of Thorp v Holdsworth (1876) 3 Ch. D. 637 at 639 holds true today:*** ***“The whole object of pleadings is to bring the parties to an issue, and the meaning of the rules…was to prevent the issue being enlarged, which would prevent either party from knowing when the cause came on for trial, what the real point to be discussed and decided was. In fact, the whole meaning of the system is to narrow the parties to define issues, and thereby diminish expense and delay, especially as regards the amount of testimony required on either side at the hearing.”*** ***The petition before the High Court referred to Articles 1, 2, 3, 4, 10, 19,20 and 73 of the Constitution in its title. However, the petition provided little or no particulars as to the allegations and the manner of the alleged infringements. For example, in paragraph 2 of the petition, the 1st respondent averred that the appointing organs ignored concerns touching on the integrity of the appellant. No particulars were enumerated. Further, paragraph 4 of the petition alleged that the Government of Kenya had overthrown the Constitution, again, without any particulars. At paragraph 5 of the amended petition, it was alleged that the respondents have no respect for the spirit of the Constitution and the rule of law, without any particulars.”*** 1. Rule 10(2) of the **Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013** (Mutunga Rules) provides for the form a petition should take. In **Timothy Njoya v Attorney General & another [2014] eKLR** Lenaola J held: - *“****I agree with the above reasoning, and with respect, the Petitioner cannot come to court to seek facts and information he intends to use to prove the very case that he is arguing before the Court. He must also plead his case with some degree of precision and set out the manner in which the Constitution has been violated, by whom and even state the Article of the Constitution that has been violated and the manner in which it has been violated”*** See also **Humphrey Mutegi Burini & 9 others v Chief of the Kenya Defence Forces & another [2017] eKLR,** by Mativo J (as he then was). 1. It is evident that for a constitutional petition to be sustainable the petitioner must cite constitutional provisions, and precisely identify the provisions that are alleged to have been violated or threatened with violation. He/she must also demonstrate the manner in which the said provisions have been violated or are threatened with violation from the facts and evidence of the case. Looking at the petition, I agree with the respondents that the petitioner has only stated the constitutional provisions violated but has failed to demonstrate how they have been violated and the harm suffered if any. 2. Having determined that the petition is not filed in the appropriate forum and does not meet the threshold for a constitutional petition, the petition must be struck out. However, even assuming that the petition must be sustained and a merit determination be made, the question is whether the petitioner has established all the elements of malicious prosecution to warrant a determination in his favour. This leads me to determine the next issue which is: **Whether the *petitioner has established the tort of malicious prosecution*** 1. The Court in a recent decision in the case of **Ngumi v Ndegwa & another [2025] KEHC 18063 (KLR)** sets out the test for proving a claim for malicious prosecution. It states; ***“65.For malicious prosecution which the Petitioner heavily complains about, all what the Petitioner would have been required to prove is the presence of four elements, namely the Respondent instituted the prosecution against the Petitioner, the prosecution ended in his favour, the prosecution was instituted without reasonable and probable cause and that the prosecution was actuated by malice. The court in Bethwel Omondi Okal v Attorney General & another [2018] eKLR reiterated these principles as follows:*** ***“… For one to succeed, he/she must prove four elements. First that the criminal proceedings were instituted by the defendant who was instrumental in setting the law in motion against the plaintiff, second, that the defendant acted without reasonable or probable cause. Otherwise there must exist facts which show that the defendant genuinely believed that the criminal proceedings were justified; third, that the defendant must have acted maliciously. That the defendant in instituting the criminal proceedings acted with improper or wrongful motive. and fourth, the criminal proceedings must have terminated in the plaintiff’s favour having been acquitted of the charge laid against him. (See Egbema v West Nile District Administration [1972] EA 60)…”*** 1. From the ingredients set out herein above, the complainant in the criminal case is not a party in this petition, the criminal prosecution in the trial court did not end in the petitioner’s favour his favour as he was found guilty and convicted and was sentenced to life imprisonment. Further, the prosecution was instituted upon the respondents receiving a complaint, carrying out investigations and determining that there was reasonable case to charge the petitioner. The petitioner has not indicated to this court, against whom he imputes the malice whether it is on the complainant, the police or the director of public prosecutions. There are no particulars of malice given. The complainant was the petitioner’s daughter and the question is whether the police or DPP had any personal interest in the family of the petitioner to maliciously create a scenario where his own daughter frames him for sodomy, for the police and DPP to charge and prosecute the petitioner with the offence of sodomy. 2. The prosecution called seven witnesses including PW1 the child who was then aged 10 years and who narrated how the petitioner who was her father and who had differed with his wife who left him for Migori, went to where she slept and defiled her from her anus and he repeated that until she reported to her teachers at school. 3. In **Stephen Kaburu & 5 others v Attorney General & 7 others [2018] KEHC 8559, (KLR),** F.Gikonyo J stated as follows: ***“[11] From the record of the criminal trial presented in court, I see that the prosecution called a total of 16 witnesses in support of their case. The arresting and Investigation Officer, I.P. John Mucheru stated that he carried out investigation and received circumstantial evidence which led to his arresting the Appellant. He even visited the scene and established that water pipes had been damaged. This fact was also observed by the criminal trial court which visited the scene. Faced with these facts, I do not think that the police officers acted without reasonable and probable cause. The criminal trial court found that prima facie case had been made by the prosecution upon which the Appellants were put to their defence. As the trial court correctly observed, so am I content to cite Rudd J in the case of Kagane & Others Vs. AG & Another [1968] EA643 that:*** ***“Consequently, the subjective test should be applied where there is some evidence directly tending to show that prosecutor did not believe in truth of his case. Such evidence could be afforded by words or letters or conduct on the part of the prosecutor which tending to show that he did not believe in it and I think possibly, an unexplained failure to call an essential witness who provided a basis part of the information upon which the prosecution was based’’. The investigation officer carried out investigation before arresting and arraigning the Appellants in court. There was reasonable and probable cause to charge the Appellants. And as I stated, acquittal alone is not per se proof of lack of reasonable and probable cause to charge the person. Such evidence tending to show that the prosecutor did not honestly believe in his case should be provided. None was provided here.*** 1. In **Stephen Gachau Githaiga & another v Attorney General [2015] KEHC 655 (KLR),** Mativo J, as he then was held 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. Quoting from the Supreme Court of Canada decision in Nelles v. Ontario [1989] 2 SCR 170, the Alberta Court of Appeal, in Radford v Stewart, said:- "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." In 1999, the Alberta Court of Queen's Bench, in Chopra v. T. Eaton Co. (240 A.R. 201) adopted these words in relation to this tort: "The underlying basis for actions founded on malicious prosecution is the allegation of facts which, if believed, would establish abuse of the judicial process while acting out of malice and without reasonable and probable cause and which judicial process did not result in a finding of guilt of the party alleging the abuse."*** 1. The petitioner may argue that he was acquitted on appeal, however a look at the reasons given by the High Court judge shows that the appeal was allowed on a technicality. In **Nzoia Sugar Company Limited & another v Fungututi & another [1988] KECA 93 (KLR),**the Court of Appeal, HG Platt, FK Apaloo, JJA & JRO Masime, Ag J, held that: ***“ It is trite learning that acquittal, per se, on a criminal case 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 respondent gave no evidence from which it can be reasonably inferred that the Security Officer made this report to the police on account of hatred or spite that he had for him.”*** 1. In **Robert Okeri Ombeka v Central Bank of Kenya [2015] KECA 464 (KLR),** where the court of appeal [Githinji, Musinga & J. Mohammed, JJ.A] at paragraph 29 and 30 posited as follows: ***“29. 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. A malicious prosecution plaintiff cannot establish lack of probable cause based on having obtained in an earlier action an acquittal based on insufficiency of the evidence. Successfully defending a prosecution or a law suit does not establish that the suit was brought without probable cause. It is the state of mind of the one commencing the arrest or imprisonment, and not the actual facts of the case or the guilt or innocence of the accused which is at issue. Probable cause is determined at the time of subscribing a criminal complaint and it is immaterial that the accused thereafter may be found not guilty. 30. Public policy favors the exposure of crime, and the cooperation of citizens possessing knowledge thereof is essential to effective implementation of that policy. Persons acting in good faith who have probable cause to believe that crimes have been committed should not be deterred from reporting them by the fear of unfounded suits by those accused. This view is in accord with the decision of the South African case of Beckenstrater V Roffcher & TheunisseN, 1955 1 SA 129 (A) 135D-E, and carried forward in the case of Relyant Trading (Pty) Ltd V Shongwe, 2007 1 ALL SA 375 (SCA) para 14 where Malan JA stated that: “… the requirement of reasonable and probable cause "is a sensible one" since "it is of importance to the community that persons who have reasonable and probable cause for a prosecution should not be deterred from setting the criminal law in motion against those whom they believe to have committed offences, even if in so doing they are actuated by indirect and improper motives.”*** 1. The petitioner was arrested, charged and convicted after investigations and evidence tendered established his culpability. Absent evidence of malice, the tort of malicious prosecution cannot be sustained. 2. In **John Nganga Kinuu & 2 others v Peter Rubiro Ndongi & 4 others [2020] KECA 711 (KLR),** the Court of Appeal, R. Nambuye, M. Koome and S. Ole Kantai JJA stated as follows: ***“Turning to the High Court, the approach the Judge took was to take into consideration the same case the trial court had relied upon namely; of John Ndeto Kyalo versus KTDA & Another (supra), and set out the principles that guide a Court of law in sustaining a claim for malicious prosecution as already highlighted above. The Judge observed and correctly so in our view that the principles set out in the John Ndeto Kyalo case (supra), formed the threshold for determining the appeal before him. Applying that threshold to the record, the Judge rendered himself as follows: I have on my part re-evaluated the evidence presented before the trial court. It is clear to me that the criminal charge preferred against appellants arose out of investigations carried out pursuant to a complaint filed by the 1st, 2nd, and 3rd respondents. It is apparent that the complaint was not false; therefore, the investigation was instituted pursuant to reasonable and probable cause. There is no dispute that on 17th May, 1998, the 1st, 2nd and 3rd respondents were attacked and robbed. The trio booked a report before Kikuyu police station. The report was real and not false. In the end, I find no merit in the appeal as against the orders on liability.”*** 1. In an earlier case of **Mbowa vs. East Mengo District Administration [1972] EA 352** (Sir William Duffus P, Lutta and Mustafa JJA), the court 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 originated in the medieval writ of conspiracy which was aimed against combinations to abuse legal procedure, that is, it was aimed at the prevention or restraint of improper legal proceedings...It occurs as a result of the abuse of the minds of judicial authorities whose responsibility is to administer criminal justice. It suggests the existence of malice and the distortion of the truth. Its essential ingredients are: (1) the criminal proceedings must have been instituted by the defendant, that is, he was instrumental in setting the law in motion against the plaintiff and it suffices if he lays an information before a judicial authority who then issues a warrant for the arrest of the plaintiff or a person arrests the plaintiff and takes him before a judicial authority; (2) the defendant must have acted without reasonable or probable cause i.e. there must have been no facts, which on reasonable grounds, the defendant genuinely thought that the criminal proceedings were justified; (3) the defendant must have acted maliciously in that he must have acted, in instituting criminal proceedings, with an improper and wrongful motive, that is, with an intent to use the legal process in question for some other than its legally appointed and appropriate purpose; and (4), the criminal proceedings must have been terminated in the plaintiff’s favour, that is, the plaintiff must show that the proceedings were brought to a legal end and that he has been acquitted of the charge...The plaintiff, in order to succeed, has to prove that the four essentials or requirements of malicious prosecution, as set out above, have been fulfilled and that he has suffered damage. In other words, the four requirements must unite in order to create or establish a cause*** ***action. If the plaintiff does not prove them he would fail in his action. The damage that is claimed is in respect of reputation but other damages might be claimed.*** ***or example, damage to property...The damage to the plaintiff results at the stage in the criminal proceedings when the plaintiff is acquitted or, if there is an appeal, when his conviction is quashed or set aside. In other words, the damage results at a stage when the criminal proceedings came to an end in his favour, whether finally or not. The plaintiff could not possibly succeed without proving that the criminal proceedings terminated in his favour, for proving any or all of the first three essentials of malicious prosecution without the fourth which forms part of the cause of action, would not take him very far. He must prove that the court has found him not guilty of the offence charged...The law in an action for malicious prosecution has been clearly defined and in so far as the ordinary criminal prosecution is concerned the action does not lie until the plaintiff has been acquitted of the charge. In this case the respondent could have brought his action for malicious prosecution until the prosecution ended in his favour. He could not have maintained his action whilst the prosecution was pending nor could he have maintained an action after he had been convicted. His right to bring the action only accrued when he secured his acquittal of the charge on appeal, and he then had the right to bring this action for damages...Time must begin to run as from the date when the plaintiff could first successfully maintain an action. The cause of action is not complete until such a time, and in this case this was only after he was acquitted on appeal.”*** 1. In **Samuel Gitonga Ringera v Henry Mutegi Maingi & 2 others [2021] eKLR**, the Court stated as follows regarding the belief in the guilt of the accused: ***“The law makes it imperative that the belief in the guilt of the accused be founded upon a decision made after due inquiry into and consideration of the facts presented to the respondents. But the reasonable belief need not be based on actual existence of a definite cause, but upon reasonable belief held in good faith in the existence of facts as are perceived by the respondents. The converse is that where there is no basis to believe that the accused is guilty of the accusation and the prosecution is all the same set in motion, there is clear evidence of malice.*** 1. In this case, I am unable to find any malice established on the part of the police who investigated the complaint, recoded witnesses’ statements and the DPP preferring charges against the petitioner. 2. On the whole, I find the petitioner’s case for malicious prosecution to be devoid of any merit and the same is hereby dismissed with no orders as to costs. 3. This file is closed. **Dated, Signed and Delivered at Nairobi this 2nd Day of July, 2026** **R.E ABURILI** **JUDGE**