https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/197

Machoka v Bidco Oil Refineries Ltd & another (Civil Suit 523 of 2018) [2026] KEMC 197 (KLR) (25 June 2026) (Judgment) Neutral citation: [2026] KEMC 197 (KLR) Republic of Kenya In the Nakuru Law Courts Civil Suit 523 of 2018 PA Ndege, J June 25, 2026 Between Musa Machoka Plaintiff and Bidco Oil Refineries Limited 1st Defendant Hon. Attorney General 2nd Defendant Judgment 1.The plaintiff was at all times a security guard at the 1st defendant’s premises. From the evidence tendered herein, there was oil spillage at the 1st defendant’s premises on the night of 01/11/2013, which led to suspicion of either a leakage or theft of oil from the tanks. Without any investigations or evidence linking him to the incident, the plaintiff was arrested alongside other colleagues, detained for 4 days without charge, and prosecuted for theft of crude oil valued at Kshs. 664,000/-. He was ultimately acquitted under section 210 of the CPC for lack of evidence to implicate him with the offence of theft. 2.The plaintiff has now brought this case against the defendants, seeking general and exemplary damages, interest on the damages and costs of this suit. He brought this suit vide a Plaint dated 11/05/2018 in which he particularized all his claim. 3.The 1st defendant filed his defence dated 27/12/2018 in which it denied liability averring that the power to arrest and prosecute a suspect lies elsewhere, specifically with the police and the ODPP and that he has wrongly been joined in this suit. The 2nd defendant filed its defence dated 21/06/2018 and contended that the police who arrested and the subsequent prosecutions were conducted under statutory powers and duties of the police and not maliciously as claimed. 4.The proceeded for a hearing in which the plaintiff testified before my predecessor, Hon. Y. Khatambi, PM, as she then was. I took over the hearing at the defence stage where the 1st defendant called its security officer and also closed its case. the 2nd defendant did not however call a witness nor adduce evidence. At the close of the hearing, again only the plaintiff and the 1st defendant filed their written submissions. 5.I have gone through the testimonies of the witnesses that appeared for both sides herein and the rival submissions filed for the plaintiff and the 1st defendant. The issue for determination is whether the plaintiff has been able to prove his case against the defendants herein. 6.The tort of malicious prosecution has been extensively discussed by our Courts. The ingredients were reiterated by Mativo J (as he then was) in the case of Stephen Gachau Githaiga & Another vs Attorney General [2015] eKLR, in which he held as follows;“Malicious prosecution is an intentional tort designed to provide redress for losses flowing from an unjustified prosecution. Under the first element of the test for malicious prosecution, the plaintiff must prove that the prosecution at issue was initiated by the defendant. This 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 dam age that results.The second element of the tort demands evidence that the prosecution terminated in the plaintiff’s favour. This requirement precludes a collateral attack on a conviction properly rendered by a criminal court, and thus avoids conflict between civil and criminal justice. The favorable termination requirement may be satisfied no matter the route by which the proceedings conclude in the plaintiff’s favour, whether it be an acquittal, a discharge at a preliminary hearing, a withdrawal, or a stay.The third element which must be proven by a plaintiff - absence of reasonable and probable cause to commence or continue the prosecution - further delineates the scope of potential plaintiffs. As a matter of policy, if reasonable and probable cause existed at the time the prosecutor commenced or continued the criminal proceeding in question, the proceeding must be taken to have been properly instituted, regardless of the fact that it ultimately terminated in favour of the accused.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." 7.Schofield J had earlier summarized the above principles in the case of Gitau vs East Africa Power & Lightning Co. Ltd (1986) KLR 365, as follows:In order for a claim of malicious prosecution to succeed the plaintiff must not only show that he was prosecuted but that he was prosecuted upon the instigation of the defendants and that there existed malice and which malice he must prove. 8.The Court of Appeal, in the case of Robert Okeri Ombeka v Central Bank of Kenya (2015) eKLR, had also guided as follows:“23.The upshot of the foregoing is that the elements of malicious prosecution that the Plaintiff in this case was required to satisfy before the trial Court were that (i) the prosecution was instigated by the Respondents, (ii) the matter was finalized in the Appellant’s favour, and (iii) the prosecution or its continuance was actuated by malice on the part of the Respondents." 9.On the first ingredient, whether the prosecution of the Plaintiff was instigated by the defendant, I find that the plaintiff’s evidence and testimony more believable than DW1’s and on a balance of probability proves that the 1st defendant, without conducting any due diligence caused the arrest of the plaintiff alongside others. The whole process was instigated by the 1st defendant. DW1 did allude to some amount of due diligence conducted by him that involved the production manager, but no internal report or memo, or the internal audit was produced. 10.On the second element, it is not disputed herein that the prosecution terminated in favour of the plaintiff. From the ruling acquitting the plaintiff, only 1 witnesses testified against the accused and his evidence did not in any way implicate the plaintiff. In fact he confirmed that the plaintiff was a diligent worker. 11.The bone of contention in this matter is on the third and fourth ingredients, that is, whether the prosecution or its continuance was conducted without probable cause, and whether the same was actuated by malice on the part of the Appellant. 12.Reviewing the evidence herein, it is clear that the 1st defendant has, in its defence, averred that its role was simply to make a report to the police, and that it did not participate in the arrest and prosecution of the Plaintiff. The 1st defendant also contended that it had a reasonable cause to believe that a crime had been committed by the Plaintiff as it had lost fuel worth Kshs. 664,000/- that could not have been due to a simple oil leak. That their investigations led them to a tank where the plaintiff was stationed. The 1st defendant therefore asserted that it lodged a legitimate complaint of theft with the police, and also availed evidence and a witness who, according to the 1st Defendant, demonstrated that there was a valid reason to make the complaint. It was also urged that upon investigations, the police found good reason to prefer charges against, and prosecute the Plaintiff. However, the 1st defendant failed to present the evidence of the internal audit and reports of investigations carried out that led to the plaintiff being implicated. 13.The obligation of proving that the police had no reasonable or probable cause to prefer charges against the Plaintiff, and that the 1st Defendant’s action of reporting the complaint was actuated by malice lay, at all times, with the Plaintiff since he is the one who was asserting that fact. Indeed, it is trite law that ‘he who alleges must prove’. This is the principle of “burden of proof” codified in Section 107 of the Evidence Act as follows:107 (1)Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.(2)When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person. 14.The plaintiff’s oral testimony is clear that he was arrested without proper interrogation of the facts by the 1st defendant and that they were arrested 6 of them, but that only 3 were charged and prosecuted. That bribery were paid and that is why they were charged for failing to pay the bribery. The plaintiff had at this pint discharged his legal burden of proving malice, and the evidential burden then shifted upon the defendants to provide evidential proof in the form of the investigative reports and the internal memos and audit reports that led them to suspect the plaintiff with the theft, or whether there was theft of oil of that magnitude, or it was a simple oil leak linked to inadvertent or negligent acts, or equipment defects. The valuation report of the oil that was stolen was also not availed. The amount quoted in the Chrage sheet herein could have therefore been overflated so as to make the charge more serious and possibly influence higher bond or bail amounts. The investigating officer was not called as a witness to dispute the plaintiff’s oral testimony that impute malice as has already been pointed hereinabove. 15.Whereas I do appreciate the fact that mere fact that a person has been acquitted of a criminal charge does not necessarily connote malice on the part of the prosecutor, in this case, the absence of records from the 1st defendant who merely relied on the charge sheet and the criminal proceedings herein make find that malice has been proved. 16.On my above finding, I am fortified by the decision of the Court of Appeal in James Karuga Kiiru v Joseph Mwamburi & 2 Others [2001] eKLR in which the Court found as follows:“(B)Malicious Prosecution. To prosecute a person is not prima facie tortious, but to do so dishonestly or unreasonably is. Malicious prosecution thus differs from wrongful arrest and detention, in that the onus of proving that the prosecutor did not act honestly or reasonably, lies on the person prosecuted." 17.Applying the above principles, and having considered the fact that the plaintiff discharge his legal burden of proving the dishonesty in the whole process I do find malice has been proved to the required standards. Thus all the essential elements of the tort of malicious prosecution has ben proved to the required standard. 18.I turn to the reliefs sought herein. The plaintiff prayed for general and exemplary damages. in the submission filed herein, the learned counsel fir the 1st defendant did not submit on the relief and the principle applicable to awarding damages in malicious prosecutions claims. I have however been adequately and impressively informed by the authorities cited by the learned counsel for the plaintiff. 19.The number of days in confinement is one of the factors to be considered. The period of prosecution is another factor. In this case the plaintiff was detained for a period of 4 days before being brought to court and this amounted to infringement of his rights to liberty. The prosecutions took 3 years and 7 months, from November 2013 to June 2017. He attended court on multiple occasions only for the 2nd defendant to avail only 4 witnesses. Learned counsel for the plaintiff has therefore proposed an award of Kshs. 6,000,000/- 20.I have taken in consideration all the above facts into consideration. I shall rely on the decision by in Nahashon Mwangi Mwaura vrs The Commissioner of Police & Anther, NBI HCCC 163 of 2006 that was submitted by the learned counsel for the plaintiff which I find to be in all fours with the present case and due to the costs of inflation, I do hereby raise the award therein to Kshs. 1,600,000/- as consolidated general damages award herein. I have factored in all the conducts that led to the arrest, confinement and prosecution of the plaintiff and I do find the award to be sufficient, I thus do not find it necessary to award exemplary damages herein. The plaintiff is also hereby awarded the costs and interest on all the sums herein at court’s rates. DELIVERED, DATED AND SIGNED AT NAKURU THIS 25TH DAY OF JUNE 2026ALOYCE-PETER-NDEGESENIOR PRINCIPAL MAGISTRATEDelivered in the presence of:The plaintiff in personn/a for any of the counsel herein.