Mwangi & 2 others v Anti-Counterfeit Authority & 2 others (Civil Case 160 of 2016) [2026] KEHC 7701 (KLR) (Civ) (4 June 2026) (Judgment)

Mwangi & 2 others v Anti-Counterfeit Authority & 2 others (Civil Case 160 of 2016) [2026] KEHC 7701 (KLR) (Civ) (4 June 2026) (Judgment) Neutral citation: [2026] KEHC 7701 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Civil Civil Case 160 of 2016 JN Mulwa, J June 4, 2026 Between James Kimani Mwangi 1st Plaintiff Anne Nyokabi Wakang’u 2nd Plaintiff Power Electrical Corporation Ltd 3rd Plaintiff and Anti-Counterfeit Authority 1st Defendant Inspector General of Police 2nd Defendant The Attorney General 3rd Defendant Judgment Pleadings 1.By a plaint dated 16/06/2016 and amended on 08/05/2017, James Kimani Mwangi, Anne Nyokabi Wakang’u and Power Electrical Corporation Ltd (hereafter the 1st, 2nd & 3rd Plaintiffs) sued Anti-counterfeit Authority, Inspector General of Police and The Honorable Attorney General (hereafter the 1st, 2nd & 3rd Defendants) seeking judgment against them jointly and severally for-;a.General damages for loss of business the quantum thereof to be determined by this honorable Court.b.General damages for wrongful arrest, unlawful and or wrongful confinement the quantum thereof to be determined by this honorable Court.c.General damages against the Defendants for controlling and limiting the 1st and 2nd Plaintiffs movement in their residence and breach of their fundamental rights as enshrined in the Constitution.d.Special damages of Kshs. 600,000,000/- being loss of value of goods and merchandise seized by the Defendants and profits thereof.e.Special damages of Kshs. 3,500,000/- being legal fees and expense in criminal defence.f.Exemplary and Aggravated damages.g.Costs and Interests.h.Such other and or further reliefs as the honorable Court may deem fit and just to grant in the circumstances of this matter.i.Costs of the suit. 2.The 1st and 2nd Plaintiffs aver being owners of Swepco General Agencies, alongside other businesses, carrying out the businesses as wholesale suppliers and general traders in various goods which include general goods and electrical goods some of which they import from other countries, and also acquire others locally which they sell and supply to other wholesale and retail traders, individuals and to other organizations for profit. 3.The Plaintiffs claim that on or about 31/05/2015, the Defendants servants and or agents entered and or broke into the Plaintiffs business premises and storage at Avenue Park Phase II Estate and the 1st and 2nd Plaintiff’s family residence in Loresho-Nairobi wherein at both locations they forcibly seized and confiscated the Plaintiffs business goods and merchandize worth millions of Kenya Shillings which the Plaintiffs intended to transport, sell and supply to their customers. 4.In respect of the Avenue Park location, it was averred that the Defendants’ servants and or agents loaded the goods and carted them away to the 1st Defendant’s warehouse in Kyangombe-Nairobi thereby denying the Plaintiffs possession and use of their property. With respect to the Loresho location, the Defendants’ servants and or agents kept the Plaintiffs goods under armed guard and control within the location for two (2) weeks before the same were loaded and carted away to the 1st Defendant’s warehouse. 5.They further claim that the 1st and 2nd Plaintiff’s family was disrupted by the Defendants actions when they were made to live under threat for two (2) weeks. Meanwhile, the 1st Plaintiff was arrested and detained at both locations on 31/05/2015 before being whisked away to a police station wherein he was detained for a further two (2) days and subsequently released without charge, instructions or on police bond. The 1st Plaintiff avers that his arrest, detention and imprisonment was false and wrongful thus breaching his constitutional rights, causing him harm, loss and injury. 6.The Plaintiffs go on to aver that in June 2015, the 1st Defendant filed five (5) different criminal cases with a raft of charges, without justification, against the 1st Plaintiff, based on false, malicious and unfounded allegations, occasioning difficulty to raise bail, a consequence of which the 1st Plaintiff spent days in remand. 7.That the Defendants’ servants and or agents equally caused to be published on television, social media and print media false and damaging information meant to portray the 1st and 2nd Plaintiffs as criminals, to wit, the defamatory publications caused and continues to cause the Plaintiffs personal and business loss. As a consequence of the aforestated the Plaintiffs claim damages for unlawful detention, malicious prosecution, legal costs expended, breach of the 1st and 2nd Plaintiffs right to freedom and liberty, damages for defamation, loss of opportunity and business, damages or unusable condition of the confiscated goods upon partial release. 8.The 1st Defendant filed an amended statement of defence and counterclaim dated 25/11/2022 denying the key averment in the amended plaint meanwhile averred that any commission or omission was in line with its statutory functions and policies on collaboration with other law enforcement agents having been informed by the 2nd and 3rd Defendants of suspected counterfeit goods. 9.It goes on to aver that it is a stranger to any allegations touching on commissions or omissions of officers of the 2nd and 3rd Defendants, and invites the Plaintiffs to strict proof thereof. That the criminal charges preferred against the 1st Plaintiff were not false, malicious or unfounded as alleged. The 1st Defendant admits having released the Plaintiffs goods on diverse dates however denies any illegality or irregularity on their part, and puts them to strict proof thereof. 10.In its counterclaim, the 1st Defendant stated that pursuant to an order of the Court, the Plaintiffs goods were released on 16/03/2017, of which they collected some of the goods and left others on grounds that they were damaged and destroyed, to wit, the goods purported to be destroyed are in good condition whereas the 1st Defendant having leased the warehouse, it claims storage costs of Kshs. 1,337,310.45/-, in respect of the remaining goods, that continues to accrue from 16/03/2017 to 31/12/2022. 11.Consequently, the 1st Defendant seeks judgment against the Plaintiffs by way of-;a.Dismissal of the Plaintiffs suit.b.Storage costs against the 1st Plaintiff of Kshs. 1,337,310.45/- accrued from 16/03/2017 to 31/12/2022.c.A declaration that the 1st Plaintiff is liable to pay the 1st Defendant a sum of Kshs. 20,313/- monthly storage costs from 01/01/2023 to 31/05/2024 until collection of the goods or judgment whichever is earlier.d.A declaration that the 1st Plaintiff is liable to pay the 1st Defendant monthly storage costs to be based on subsequent leases from 01/06/2024 until collection of the goods or judgment whichever is earlier.e.Cost and Interest. 12.The 2nd & 3rd DefendantS filed a statement of defence dated 21/09/2017 denying the key averments in the amended plaint meanwhile averred in the alternative and without prejudice to the averments in the statement of defence, that there were suspected counterfeit goods at the premises of the Plaintiffs, as such, with the said information they alerted the agents of the 1st Defendant who confirmed indeed that the goods were counterfeit, hence their actions were lawful based on the fact that the Plaintiffs had engaged themselves in the sale, use and possession of counterfeit goods. 13.The Plaintiffs thereafter filed a reply to the respective defences and a defence to the 1st Defendant’s counterclaim denying the key averments in the counterclaim while reiterating the contents of the amended plaint. 14.The suit proceeded to full hearing during which only the Plaintiffs and 1st Defendant called evidence in support of the averments in their respective pleadings. Plaintiffs Case and Evidence 15.James Kimani Mwangi, the 1st Plaintiff, testified as PW1. He stated that the 2nd Plaintiff is his wife and that they run the 3rd Plaintiff, a company, together. He proceeded to adopt his witness statement dated 22/09/2017 as his evidence in chief meanwhile adduced into evidence the documents appearing in the Plaintiffs bundle of documents as Pexh.1-41. The gist of his evidence was that the Plaintiffs goods were taken by the Defendants and was thereafter prosecuted, that they recovered some of the goods and left the others with the 1st Defendants as they had expired while others were not in good condition, to wit, for the damaged goods caused him loss and thus seeks compensation for the same. 16.In cross-examination, he confirmed that some of the confiscated goods were returned to the Plaintiffs, adding that thereafter he engaged an auditor to prepare a forensic report for the period the goods had been impounded. He confirmed that the report adduced into evidence was in respect of Swepco General Agencies, and not the 3rd Plaintiff. That the audit report quantified his loss as onwards of Two (2) Billion Kenya Shillings, however as per the amended plaint, the Plaintiffs sought 600 Million Kenya Shillings premised on his estimation and documents availed to the auditor. He confirmed having lost goods however did not particularize them in their entirety in his plaint. 17.That with respect to the sales as captured in the report, he did not adduce stock sheets, registers, delivery notes, sale receipts, sales sheets or invoices for the period captured therein. It was his evidence that 312 of the oil jerrycans released to him had yet to expire; however most of the confiscated goods in the warehouse had been stored in poor condition. He went on to state that he was arrested and detained at a police station for three (3) days while the reasons for his arrest at the time were not disclosed to him. 18.It was his further evidence that he paid 3.5 Million Kenya Shillings in legal fees however he did not evince the same in his bundle of documents. He confirmed that the seized goods were subjected to Kenya Bureau of Standard (KEBS) tests and that neither the bulbs nor edible oils were found to be counterfeit as purported. In summation, he stated that from the recorded inventory, the police had stolen some items from his residential house being assorted jewelry among others and thus urged the Court to allow the Plaintiffs claim as sought. 19.In re-examination, PW1 stated that close to 4000 oil jerrycans were inventoried and that the 3rd Plaintiff sold its products through Swepco General Agencies. That the two (2) companies trade in the same goods confiscated by the Defendants. He went on to state that both companies were licensed to trade, meanwhile iterating that the confiscated goods were stored in deplorable conditions. 20.In conclusion, PWI disputed the assertion on having refused to collect the confiscated items from the 1st Defendant and that when he visited the latter’s storage he was only given a few of the items. 21.Barrack Aggrey Ochieng Obungu testified as PW2. He identified himself as a certified public accountant duly accredited by ICPAK. It was his evidence that he was instructed by the Plaintiffs to conduct a forensic audit report of their business which he did and thereafter prepared a report dated 08/03/2018. That the audit period was between 2011 and 2017. That he discovered a total loss onwards of Two (2) Billion Kenya Shillings, broken down into-;general trading; loss of stocks; loss of overseas trading; and loss of credibility.He stated that the loss visited on the Plaintiffs could have been perpetuated beyond 2017 and that Swepco General Agencies as mentioned in his report, is equally owned by the 1st and 2nd Plaintiffs. 22.On cross-examination, PW2 stated that the purpose of his report was to compute and examine the loss occasioned to the 3rd Plaintiff and Swepco General Agencies as jointly co-owned by the 1st and 2nd Plaintiffs. He stated that the confiscated goods were branded PEC of which included edible oils, writing pens, bulbs, welding rods and light bulbs. From his report, he established loss of stock from both the 1st and 2nd Plaintiffs properties. He confirmed not to have not particularized in his report, the lost stock, consigned goods, withdrawn goods, cancelled orders, damaged goods or expired goods, stating that the focus of his report between 2011 - 2014 was to detail sales before the raid and sales after the raid up to 2017. He confirmed having not quantified in his report the loss for the period between 2015 -2017 or exhibited loss or inability of the companies to obtain loan facilities from banks. He further stated that his report quantified projected sales between 2015 -2017, to which the aggregate loss came to over two (2) Billion Kenya Shillings that ought to be compensated to Swepco General Agencies. 23.Additionally, he testified that from his report there is a specific sum of Kenya Shillings 600 Million, meanwhile all records relied on were availed to him by the 1st and 2nd Plaintiff. He went on to state that his projection on sales was analyzed on the premise of import records whereas he had no specific figures on goods supplied to Swepco General Agencies from abroad given that his analysis was generalized. He stated that in arriving at the figure on loss, he compared Swepco General Agencies imports as against goods seized. 24.In re-examination, PW2 stated that his report was professional, guided by the scope of instructions whereas he needed not attach every document he relied on towards preparing the same. 25.Anne Nyokabi Wakang'u, the 2nd Plaintiff, testified as PW3. She identified herself as a one of the directors of the 3rd Plaintiff and co-proprietor of Swepco General Agencies whereinafter she proceeded to adopt her witness statement dated 19/01/2018 as her evidence in chief. 26.On cross-examination, she confirmed that Swepco General Agencies is owned by both herself and PW1, and that the former suffered loss close to Kshs. 700 million however could not quantify the loss suffered by the 3rd Plaintiff. That the Plaintiffs lost income and profits as upon release of the confiscated goods some were damaged and others were missing. She stated that both Swepco Agencies and the 3rd Plaintiff are co-owned by the 1st and 2nd Plaintiffs. 27.She confirmed having not been charged with any offence before Court. That at their Loresho house there were jerrycans of cooking oil called “Olivia” that were seized and that the police stole some goods while carrying out the raid. She affirmed having not quantified the stolen goods in their pleadings, meanwhile confirmed that some of confiscated goods were returned to the Plaintiffs.In re-examination, she iterated that the cooking oil called “Olivia” is what was confiscated from their stores. 1st Defendant’s Case and Evidence 28.Caspar Mark Owino Oluoch, testified as DW1. He identified himself as an Inspector with the 1st Defendant meanwhile proceeded to adopt his witness statement dated 26/01/2023 as his evidence in chief. On the date in question, he testified to having been instructed by 1st Defendant’s Assistant Director to go to the Plaintiffs storage at Avenue Park Phase II Estate whereupon arrival he found police officers. He states that both Avenue Park Phase II Estate and Loresho Residence were in control of the police and that he took inventory in the aforestated locations in the presence of the 1st Plaintiff. The inventory at Avenue Park Phase II Estate was serialized as No. 1692 and the Loresho Residence serialized as No. 1693 with other serialization as No. 1694, 1695 & 1696. 29.He stated that upon serialization, the confiscated items were transported to the 1st Defendant’s warehouse whereafter he supplied the goods to the respective brand owners to determine if the seized items were counterfeit. That some of the goods could not be determined by the brand owners and were therefore released to the Plaintiffs. He went on to state that the goods released in 2016 were occasioned by a Court order whereas not all were released because the Plaintiffs contend that some of them were damaged. He took issue with the Plaintiffs claim on damages to the goods and asserted that the same were in good condition at date of release. 30.On cross-examination, he stated that among the goods seized were Philips bulbs which the brand owner confirmed were counterfeit for having similar design; welding rods by Welrods who also confirmed that the welding rods were counterfeit; ball pens that were also confirmed to be counterfeit for having similarities with Bigball Pens; Olivia Oil that had similar design with KAPA oil that produced Rina Oil, who equally confirmed that the similarities meant that the oils were counterfeit, to wit, the totality of the forestated were seized. He went on to state that the Defendant had reasonable cause to have the 1st Plaintiff arrested whereas the 1st Defendant’s responsibility was to the goods, upon confirmation of being counterfeit. 31.He stated that on the date in question he ordered for the storage store to be sealed as a standard procedure while having yet seen the goods inside however the 1st Defendant had received a report of counterfeit goods in the said stores. He confirmed that during the period, the police were on guard as investigations were being carried out. He equally stated that during the period, particularly at the Loresho Residence, there had been interference with the goods though he was unaware whether some had been stolen or not. 32.That the Plaintiff failed to collect all the seized goods despite the fact the storage warehouse was leased. He stated that the warehouse is leased by the government and used by the 1st Defendant towards storage of seized goods and not specific to the Plaintiffs. He went on to state that where there is an order for release of seized goods and the owner fails to collect them, the latter is charged for storage however he is unaware of the specific provision of statute the same is premised on. He confirmed that the lease adduced by the 1st Defendant though undated had been signed by the 1st Defendant. In conclusion, he stated that he was unaware of the value of the goods either seized or eventually returned to the Plaintiffs. 33.In re-examination, he iterated that as at issuance of the release order in respect of the seized goods, the warehouse lease was still active. That he initially did not take an inventory of the seized goods at the Plaintiffs Loresho Residence as the 2nd Plaintiff was not present to witness the exercise. He stated that per statute the 1st Defendant is allowed to detain seized goods for ninety (90) days. He concluded by stating that with respect to seized cigarettes, the 1st Plaintiff was not charged whereas he refused to collect them despite an order for release therefore the 1st Defendant is still in custody of the same on behalf of the Plaintiffs. 34.Fredrick Chepwony testified as DW2. He identified himself as a Depot Manager of the 1st Defendant meanwhile proceeded to adopt his witness statement dated 26/01/2023 as his evidence in chief. It was his evidence that he received the Plaintiffs seized goods at the 1st Defendant warehouse and that some are still in their custody whereas others have since been released to the Plaintiffs. 35.On cross-examination, it was his evidence that no goods were stolen from the 1st Defendant’s depot. That the goods in respect of Inventory No. 1694 were carried by J.O Global who are agents that worked with the Investigating Officer in the field. He confirmed that the inventory lacks a signature showing either the seized goods were taken to the 1st Defendant depot or the registration of the vehicle that carried the latter. He equally confirmed being the one who received some of the seized consignment however was not present in respect of Inventory No. 1692 that was seized on 31/05/2015. And that the storage depot is leased for purposes of storing seized goods. 36.In re-examination, he iterated that the goods seized from the Plaintiffs houses were brought to the depot and that at all material times relevant to the matter he was in charge of the depot in question. 37.Evans Mwanzui Mutinda and Nicodemus Mwangangi Mwavi witness statements were adopted into evidence by consent, as DW3 and DW4 respectively. Per their respective witness statements, they identified themselves as Building Surveyors working in the State Department for Housing and Urban Development under the Ministry of Lands. The gist of their evidence in the said witness statements was that they received a letter from the 1st Defendant requesting for assistance towards confirmation of the measurement of the space occupied by the Plaintiffs goods stored at the 1st Defendants warehouse. That Upon undertaking the said assignment, they established from their measurements that the Plaintiffs goods occupied an area of 639.53 square feet out of a total approximate 10,265 square feet of the 1st Defendant’s warehouse. 38.The 2nd & 3rd Defendant did not call any evidence in support of the averments in their pleadings. 39.At the close of the trial, the respective parties filed written submissions. Plaintiff’s Submissions 40.Counsel for the Plaintiff began his submissions by restating history of the matter, pleadings, evidence meanwhile proceeded to condense his submissions into five (5) cogent issues as shall be stated below. 41.On whether the Plaintiffs are entitled to general damages for loss of business, counsel posited that the Defendants raid, seizure and prolonged detention of the Plaintiffs goods crippled the latter’s business by way of loss of stock, loss of projected profits, loss of clientele and loss of creditworthiness. It was further submitted that through PW2’s evidence, the Plaintiffs evinced business loss amounting to Kshs. 2,140,702,318/-, aggregate loss of stock in the sum of Kshs. 546,568,096/-; and loss of financing & commercial credibility, to wit, commensurate damages ought to be awarded. 42.The decisions in Fose v Minister of Safety and Security [1997] (3) SA 786(CC)1997(7) BCLR 851 as cited in Law Society of Kenya v Attorney General & another; Warsame & another (Interested Parties) [2019] KEHC 10881 (KLR) were cited to posit that an appropriate relief ought to be an effective remedy for purposes of enforcing the Constitution, human rights and the rule of law. 43.On the question of wrongful arrest, false imprisonment and constitutional violation, counsel argued that the 1st Plaintiff’s arrest and detention for more than 24 hours was without justification, whereas the 2nd Plaintiff was essentially under house arrest. It was further submitted that the latter’s home having been occupied by armed police for close to two (2) weeks and subjected to an unlawful search was in breach of Articles 29, 31, 39 & 49 of the Constitution, Section 36A (2) of the Criminal Procedure Code (CPC) and Section 23(4) of the Anti-counterfeit Act. While calling to aid the decisions in University Academic Staff Union (UASU) v Attorney General & Chief of Staff & another [2018] KEHC 4764 (KLR) and Erastus Maina Karanja v Machakos County Government [2021] eKLR, counsel posited that the Plaintiffs rights ought not to have been arbitrarily restricted, to wit, damages ought to be awarded given the Defendants illegality, so as to punish and act as a deterrence. 44.On malicious prosecution, counsel relied on the decisions in Kagane & Others v Attorney General [1969] EA 643 and Mbowa v East Mengo District Administration [1972] EA 352 as cited in NCBA Bank Kenya PLC (Formerly Commercial Bank of Africa Limited) v Nyaribo & another [2024] KEHC 8071 (KLR) to posit the constituent ingredients of malicious prosecution were established. In urging the Court to award damages in the sum of Kshs. 10,000,000/- under this header, the Court was urged to consider inflation, the scale of the Plaintiffs business and reputational harm. The decisions in Samuel Kiprono Chepkonga v Kenya Anti-Corruption Commission & Another [2014] KEHC 8554 (KLR) and G.B.M Kariuki v Attorney General [2016] KEHC 7276 (KLR) were cited in the forestated regard. 45.Submitting on the claim for special damages for loss of value of goods and expenses in criminal defence, counsel summarily argued that the Plaintiffs seized goods were either damaged, expired, rendered obsolete and or stolen in the tune of Kshs. 600,000,000/-, and incurred legal expenses in their defence to the tune of Kshs. 3,500,000/-as evinced vide the audit report adduced into evidence and the physical examination of the goods upon a site visit. 46.On exemplary and aggravated damages, counsel anchored his submissions on the decisions in Abdulhamid Ebrahim vs Municipal Council of Mombasa [2004] KEHC 1984 (KLR) and Godfrey Julius Ndumba Mbogori & another v Nairobi City County [2018] KECA 702 (KLR) as affirmed in D K Njagi Marete v Teachers Service Commission [2020] KECA 840 (KLR) to iterate that the Defendants actions were arbitrary and oppressive, urging the Court to award an appropriate amount in exemplary damages. 47.Concerning the 2nd and 3rd Defendants' defence, counsel summarily argued that failure on the part of the latter to call evidence effectively meant that their defence was unproven and therefore the Plaintiffs case was uncontroverted. With respect to the 1st Defendant’s counter-claim, it was posited that there was no valid contractual basis for the claim, no proof of payment that the premise was actually leases, no legal or statutory authority to charge storage charges whereas return of the goods lay on the Defendants. Counsel relied on the decision in Chon Jeuk Suk Kim & another v E. J. Austin & 2 others [2013] KECA 150 (KLR) to argue that the unregistered lease dated 10/09/2015, as evinced by the 1st Defendant, could not confer any legal or equitable interest therefore the claim on storage lacked merit. That in any event, the 1st Defendant failed to specifically prove its claim on storage, to wit, its counter-claim thus ought to collapse in its entirety. In summation the Court was urged to allow the suit as prayed meanwhile dismiss the 1st Defendant’s counter-claim with costs. 1st Defendant’s Submissions 48.On the part of the 1st Defendant, at the outset counsel took a preliminary stance that this Court lacks the requisite jurisdiction to grant prayers (b) and (c) of the amended plaint and that the reliefs ought to be dismissed on jurisdictional grounds. While placing reliance on Section 16 of the Anti-Counterfeit Act, counsel posited that the 1st Defendant’s liability is strictly anchored on the aforestated provision, that liability only arises where there is gross negligence or bad faith, which are subject to proper pleading and strict proof. 49.It was further submitted that parties are bound by their pleadings, to wit, the Court can only grant relief(s) which are pleaded and proved. That the Plaintiffs argued a cause premised on malicious prosecution and constitutional remedies however failed to plead the same therefore no award can emanate therefrom. The decisions in Muriithi (Representative of the Estate of Mwangi Stephen Muriithi) v Janmohamed SC (Executrix of Estate of Daniel Arap Moi) & another [2023] KESC 61 (KLR), Communications Authority of Kenya v Okoiti & 8 others [2020] KECA 754 (KLR), David Sironga Ole Tukai v Francis Arap Muge & 2 others [2014] KECA 155 (KLR), Anti Counterfeit Authority v Mwania t/a Tonermart Technologies & another [2024] KEHC 1725 (KLR), Thomas De La Rue (K) Ltd v Omutelema [2013] KECA 492 (KLR), Caltex Oil (Kenya) Ltd v Rono Ltd [2016] KECA 457 (KLR), Anarita Karimi Njeru v Republic [1979] KEHC 30 (KLR), Matemu v Trusted Society of Human Rights Alliance & 5 others [2013] KECA 445 (KLR) and Speaker of the National Assembly v Karume [1992] KECA 42 (KLR) were cited in the aforestated regard. 50.On whether this Court can award the Plaintiff damages for loss of business, counsel called to aid the decisions in Kiai t/a High Flyer Services and Publishers & another v Gichuki t/a High Flyer Publishers & another [2024] KECA 842 (KLR) and Kimatu Mbuvi t/a Kimatu Mbuvi Bros v Augustine Munyao Kioko, Civil Appeal No. 203 of 2001 [2007] 1 EA 139, Mohammed Hassan Musa & Another v Peter M. Mailanyi & Another [2000] KECA 31 (KLR), Kenya Airports Authority v Otieno Ragot and Company Advocates [2024] KESC 44 (KLR) and Kenya Urban Roads Authority v Kimgen Supplies Company Limited [2024] KEHC 9820 (KLR) to summarily posit that the Plaintiffs loss of business claim, is a special damage claim that must be specifically pleaded and proved. 51.Concerning the claim for Kshs. 600,000,000/-being the value of goods and merchandise seized by the Defendants and profits thereof, counsel argued that the claim was arbitrary, unparticularized, unsupported by evidence whereas going by the Plaintiffs evidence the figure was admitted as an estimate with no finding on the figure claimed. It was further argued that the amount claimed was not premised on any itemized goods therefore any award under the claim cannot be sustained. The decisions in Capital Fish Kenya Limited v The Kenya Power & Lighting Company Limited [2016] KECA 56 (KLR), Jogoo Kimakia Bus Services LTD v Electrocom International LTD [1992] KECA 48 (KLR), Kenya Tourist Development Corporation v Sundowner Lodge Limited [2018] KECA 312 (KLR) were called on aid on the issue. 52.On special damages of Kshs. 3,500,000/- being legal fees and expenses, it was summarily posited that no receipts or proof of payment was evinced before the Court therefore the claim ought to be denied in its entirety. The decisions in Total (Kenya) Limited Formally Caltex Oil (Kenya) Limited v Janevams Limited [2015] KECA 822 (KLR), Ndishu & another v Muriungi [2022] KEHC 2 (KLR) and Christine Mwigina Akonya v Samuel Kairu Chege [2017] KEHC 1484 (KLR) were called to aid. Submitting on the proforma invoice not being evidence of payment and thus cannot form the basis of special damages claim, counsel argued that the invoices were not receipts or proof of payment. The decision in Total (Kenya) Limited Formally Caltex Oil (Kenya) Limited (supra) was cited in respect of the above. 53.On the question of whether damages ought to be awarded for wrongful arrest and confinement, it was submitted that firstly there was no evidence of illegality of the 1st Plaintiff’s arrest or constitutional foundation in respect of the claim. And secondly from the Plaintiffs evidence and documents on record, it shows that the Plaintiff was lawfully held for close to 32 hours and not 4 days as alleged. As to whether the Plaintiffs claim has met the constitutionality test, counsel relied on the decision in Ouko & 6 others v Inspector General of Police & 11 others [2025] KEHC 12696 (KLR) to posit that the claim falls short of the muster. 54.As to whether the Plaintiffs are entitled to exemplary and or aggravated damages, it was summarily argued that the same was not pleaded whereas not factual basis was established for the award. Therefore, the Plaintiffs claim under the said head ought to fail procedurally and substantially. The decisions in Dakianga Distributors (K) Ltd v Kenya Seed Company Limited [2015] KECA 870 (KLR) and the English decision in Rookes v Barnard [1964] AC 1129 as cited in Godfrey Julius Ndumba Mbogori & another v Nairobi City County [2018] KECA 702 (KLR). 55.It was further submitted that whereas the Plaintiffs claim for unlawful arrest and detention failed to meet the constitutional test set out in Anarita Karimi Case, it was time barred, the suit having been filed about 15 days after the 12-month limitation period in respect of claims against the government. The decisions in Jared Kerongo Bosire v Kenya Railways Corporation & another [2019] KEELRC 2272 (KLR) and Johnson Kobia M’mpwi v Kenya Revenue Authority & another [2008] KEHC 816 (KLR) among other were cited in the above regard. 56.Penultimately, submitting on the Plaintiff claim on lost profit, counsel posited that the claim has not met the test in Nyamai v Mbaluka & another [2023] KEHC 26215 (KLR). It was equally argued that the claim was not particularized in the pleadings nor sought a relief in respect of the claim therefore, it was not specifically pleaded and proved. With respect to the 1st Defendant counterclaim, it was summarily submitted that the same was not controverted, to wit, it ought to be allowed as prayed. 2nd & 3rd Defendant’s Submissions 57.On the part of the 2nd & 3rd Defendants, counsel began his submissions by restating history of the matter, pleadings, evidence meanwhile proceeded to condense his submissions into six (6) cogent issues. 58.Concerning whether the 1st Plaintiff was unlawfully detained and whether the Plaintiffs are entitled to damages, it was submitted that the former was lawfully arrested and detained based on reasonable suspicion of dealing in counterfeit goods. While calling to aid the provisions of Section 29, 30 & 32 of the CPC and Section 2 of the Anti-Counterfeit Act, it was argued that the police actions were within the statutory mandate whereas the Plaintiffs were duly informed of the reason for the arrest, was produced in Court within 24 hours and later released on bail. The decision in James Karuga Kiiru v Joseph Mwamburi and 3 Others, Nrb C.A No. 171 of 2000 was cited in respect of the aforestated. 59.On whether the Plaintiffs prosecution was malicious and thus entitling him to damages, counsel anchored his submission on Kagane & Others v Attorney General [1969] EA 643 and Katerrega versus Attorney General (1973) E.A 289 to summarily submit that the 1st Plaintiff failed to prove lack of reasonableness and malice towards his prosecution therefore a claim premised on malicious prosecution cannot sustain. 60.Submitting on whether failure to call a witness was fatal on the part of the 2nd & 3rd Defendants, counsel placed reliance on the decisions in Charterhouse Bank Ltd (Under Statutory Management) v Kamau [2016] KECA 153 (KLR) and Karugi & Another v Kabiya & 3 Others (1987) KLR 347 to posit that failure to call evidence is not fatal as onus is on the Plaintiffs to convince the Court on a balance of probabilities that they have a claim as against the Defendants. 61.On whether the Plaintiffs are entitled to special damages, counsel cited the decision in Jogoo Kimakia Bus Services Ltd v Electrocom International Ltd [1992] KLR 177, Nizar Virani T/A Kisumu Beach Resort v Phoenix of East Africa Assurance Company Limited Civil Appeal No. 88 of 2002 [2004] 2 KLR 269, Gulhamid Mohamedali Jivanji v Sanyo Electrical Company Limited Civil Appeal No. 225 of 2001 [2003] KLR 425; [2003] 1 EA 98, Jackson K Kiptoo v The Hon. Attorney General [2009] KLR 657 and Hahn vs. Singh, Civil Appeal No. 42 of 1983 [185] KLR 716 to summarily posit that the Plaintiff failed to specifically prove special damages in the sum of Kshs. 600,000,000/- 62.It was further submitted that the claim of 2.14 Billion kenya shillings was not proved whereas loss of sale based on projections was not actual loss. That the Plaintiffs failed to evince a price list, proof of prior sales and evidence of consignment transactions. In any event, the site visit revealed that a majority of the seized goods were still intact whereas the Plaintiffs failed to mitigate their loss by failing to collect the goods after a release order from the court. 63.On whether the Plaintiff is entitled legal fees of Kshs. 3,500,000/- it was summarily submitted that no evidence was adduced to support the claim hence it ought to be denied. 64.Concerning aggravated damages, counsel relied on the decision in Geoffrey Githiri Kamau v Attorney General [2015] KEHC 2557 (KLR) to submit that the Plaintiff is not entitled to the same as no malice or oppressive conduct was proved on the part of the Defendants. The Court was urged to dismiss the Plaintiffs claim with costs. Analysis and Determination 65.The Court has carefully considered the respective parties’ pleadings, the evidence adduced, and the parties' written submissions.Issues for determination-:a.Whether the Plaintiffs have made out a case for malicious prosecution and unlawful or wrongful confinement/false imprisonment?b.Whether the 1st Plaintiff is entitled to special damages of Kshs. 3,500,000/- being legal fees and expenses in his criminal defence?c.Whether the Plaintiffs are entitled to an award of special damages in the sum of Kshs 600,000,000/- being the loss of the value of goods and merchandise seized by the Defendants and profit thereof?d.Whether the Plaintiffs are entitled to general damages for general loss of business?e.Whether the Plaintiff are entitled to exemplary and or aggravated damages?f.Whether the 1st Defendant is entitled to accrued storage charges and whether the Plaintiffs are liable to settle the same?g.Who ought to bear the costs of the suit? 66.At the heart of the suit is a determination whether the Plaintiff has established on a balance of probabilities that the 1st Plaintiff’s prosecution as instigated was malicious by design, without reasonable and or probable cause, and whether the 1st & 2nd Plaintiff were unlawfully or wrongfully confined or falsely imprisoned? 67.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 the evidence in support of the pleadings. 68.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.” 69.At the outset, the Court notes from the 1st Defendant submissions that an argument was made on the fact that parties are bound by their pleadings, to wit, the Plaintiffs cause premised on malicious prosecution and any constitutional remedies sought, ought to be declined. A cursory perusal of the Plaintiffs amended plaint, ex facie reveals it to premised on a raft of causes of action. Notably, no constitutional violations were pleaded in the body of the plaint. However, the Court observes that a claim premised on malicious prosecution was specifically pleaded at paragraphs 18 and 19 of the amended plaint. 70.On the above, the authors of Bullen and Leake (12th edition), Pg 3 under the rubric Nature of Pleadings stated that-:“The system of pleadings operates to define and delimit with clarity and precision the real matters in controversy between the parties upon which the parties can prepare and present their respective cases and upon which the court will be called upon to adjudicate between them. It thus serves the two fold purposes of informing each party what is the case of the opposite party which he will have to meet before and at the same time informing the court what are the issues between the parties which will govern the interlocutory proceedings before the trial and which the court will have to determine at the trial.” 71.Within our jurisdiction, in the case of Galaxy Paints Co. Limited v Falcon Guards Limited [2000] 2 EA 385, it was observed that the issues for determination in a suit generally flowed from the pleadings and a trial Court can only pronounce judgement on the issues arising from the pleadings or such issues as the parties framed for determination.Here, it is patent that the claim premised on malicious prosecution and resultant damages, were pleaded by the Plaintiffs, to wit, the 1st Defendant’s assertion, on failure to plead and outright dismissal of prayer (b) in the amended plaint, cannot sustain in the circumstance. 72.However, the Court is inclined to agree with the 1st Defendant, while drawing reverence from the above authors and above-quoted case law, that the Plaintiffs claim anchored on any constitutional violations cannot sustain in the absence of a reasonable degree of precision in respect of that of which they complain, the provision of the Constitution purportedly infringed, and the manner in which it has been allegedly infringed, as observed in the of-cited decision in Anarita Karimi Njeru v Republic [1979] eKLR. Therefore, prayer (c) in the amended plaint cannot be entertained in the circumstance and is accordingly dismissed as urged. Whether the Plaintiffs have made out a case for malicious prosecution and unlawful or wrongful confinement /false imprisonment? 73.Here, I propose to first address the limb on malicious prosecution. It is trite that the conjunctive elements to be proved in an action founded on malicious prosecution are well settled since Mbowa (supra), 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 v Attorney General (supra) 74.The above ingredients must be established for a claimant to succeed in a cause of action founded on malicious prosecution. The undisputed events leading hereto are that the 1st Plaintiff was at all material times relevant to the suit a co-director of the 3rd Plaintiff and Swepco General Agencies carrying out the businesses as wholesale suppliers and general traders in various goods, some of which they import from other countries and also acquire others locally which they sell and supply to other wholesale and retail traders, individuals and to other organizations for profit. 75.That on 31/05/2015 the Defendants servants and agents entered and or broke into the Plaintiffs business premises and storage at Avenue Park Phase II Estate and the 1st and 2nd Plaintiff’s family residence in Loresho wherein at both locations they forcibly seized and confiscated the Plaintiffs business goods and merchandize worth millions of Kenya Shillings, on grounds of being counterfeit, which the Plaintiffs intended to transport, sell and supply to their customers. 76.The 1st Plaintiff avers that he was later prosecuted in Milimani Chief Magistrate Court Criminal Case No. 1031, 1430, 1431, 1432 & 1433 of 2015. He was released on bail and later acquitted under Section 210 of the CPC when the Court found that he had no case to answer, to wit, all the charges against him were dismissed in Milimani Chief Magistrate Court Criminal Case No. 1431 of 2015. As such, it is not in dispute that the criminal proceedings were commenced by the Defendants agents and later terminated in favour of the Plaintiff wherein the latter was discharged of all charges preferred against him in Milimani Chief Magistrate Court Criminal Case No. 1431 of 2015. The forestated in essence resolves ingredients (1) and (4) in Mbowa (supra). 77.Having established the above, what presents for consideration at this interval is whether the Defendants agents acted without reasonable or probable cause; and acted maliciously thus leading to the prosecution of the 1st Plaintiff. According to Halsbury’s Laws of England, 4thEdition – Reissue, Vol.45 (2) -:“[R]easonable 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”. 78.In Murunga v Attorney General [1979] KLR 138 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. 79.Notably, during the hearing, the 1st Defendant called evidence to shore up the averments in its pleadings. DW1 who was an Inspector with the 1st Defendant stated from his adopted witness statement that on the date in question, 31/05/2015, at 7.30am he was called by the then 1st Defendant’s Assistant Director of Enforcement to proceed and join one Amon Muge who was already at the Plaintiffs storage at Avenue Park Phase II Estate. At the scene, DW1 stated that Mr. Muge introduced him to Mr. Rono and Mr. Ndirangu, the latter whom he was informed was in charge of the operation, on orders of the 2nd Defendant. 80.It is equally notable from the charges preferred against the 1st Plaintiff, as per the charge sheets, the same related to possession in the course of trade, counterfeit goods contrary to Section 32(a) as read with Section 35(1)(a) of the Anti-Counterfeit Act. 81.That said, as earlier captured in this judgment, it is not in dispute that the Plaintiffs were engaged in the business of wholesale supplies and general trade of various goods, which were the subject of purported investigation by the 1st & 2nd Defendant. However, there is no evidence by either DW1 or DW2 on how they came about to reasonably suspect that the Plaintiffs were in the business and trade of counterfeit goods. 82.The 1st and 2nd Defendant failed to call either Mr. Muge, Mr. Rono and Mr. Ndirangu who were already at the Plaintiffs storage site to link 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 the 1st & 2nd Defendant, to the conclusion that the person charged was probably guilty of the crime. 83.There was equally no indication from the Defendants evidence whether their actions was based on intelligence reports and or a report from either of the parties, of whose goods were purportedly counterfeited, and being traded by the Plaintiffs. 84.A review of the ruling in Milimani Chief Magistrate Court Criminal Case No. 1431 of 2015, that acquitted the 1st Plaintiff, the prosecution called 10 witnesses wherein it was the prosecution’s case that suspected counterfeit goods were found at both the 1st and 2nd Plaintiff premise along Outering Road and Loresho. 85.While Section 23(1)(a) of the Anti-Counterfeit Act provides that-;An inspector may at any reasonable time—(a) enter upon and inspect any place, premises or vehicle at, on or in which goods that are reasonably suspected of being counterfeit goods are to be found, or on reasonable grounds are suspected to be manufactured, produced or made, and search such place, premises or vehicle and any person found in such place, premises or vehicle, for such goods and for any other evidence of the alleged or suspected act of dealing in counterfeit goods, and for purposes of entering, inspecting and searching such a vehicle, an inspector may stop the vehicle, wherever found, including on any public road or at any other public place; 86.My understanding of the above provisions must be understood in the parlance of the Anti-Counterfeit Act, which states that the latter is an Act of parliament to prohibit the trade in counterfeit goods, to establish the Anti-Counterfeit Authority and for connected purposes. The prohibition, in my understanding ought to be premised on some proactive action by the 1st Defendant either through, cognizable commissions, investigations, intelligence reports or complaints but not actions in vacuum where the 1st & 2nd Defendant raids premises without probable cause or suspicions. Such raids must be used to achieve the purpose and intent of the Act lest they are abused. 87.The deduction is further shored up by the fact that the criminal Court in Criminal Case No. 1431 of 2015, while observing that the prosecution failed to call key witness, stated that-;“The prosecution chose not to call any of the administration police officers who found the goods on 30/5/2015 and therefore primary evidence on how the goods were found, which officer found what how the search was made remains a mystery” 88.To the forestated end, has the Plaintiffs proved that the Defendants agents acted without reasonable or probable cause. 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-;“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.” 89.A further perusal of the decision in Criminal Case No. 1431 of 2015 alongside the evidence adduced before this Court, the trial Court therein equally noted that there was a serious misstep on the handing of the chain of custody of goods seized from the Plaintiffs, failure to adduced, failure to call pertinent makers of documents and overall careless handing of investigation as against the 1st Plaintiff. Further, there was no basis laid why the Defendants agents decided to extend the scope of their investigations to the 1st and 2nd Plaintiffs residence in Loresho. 90.Therefore, can malice be imputed from the totality of the Defendants actions? 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." 91.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.” 92.The fact that no basis was laid by the Defendants in respect of the reasonable or probable cause towards the 1st Plaintiff's prosecution and the cavalier manner in which prosecution of the 1st Plaintiff was carried, transcends that opinion that the criminal proceedings as against the 1st Plaintiff were utilized for an improper collateral purpose, if not to abuse the criminal process. 93.While this Court has repeatedly stated that shoddy investigation does not connote malice, here a perfunctory review of the ruling in Criminal Case No. 1431 of 2015, would seem that the prosecution was not properly intended to successfully prosecute the matter given the successive gaps in the Defendants case.And at the risk of repetition, reasonable or probable cause towards the 1st Plaintiffs prosecution. To the foregoing end, I believe the 1st Plaintiff has made out a case of malicious prosecution as against the Defendants, to wit, it will proceed to address the question of awardable damages later in this judgment. 94.On the second limb unlawful or wrongful confinement/false imprisonment? It is not in dispute that the 2nd and 3rd Defendants agents’ power to arrest and detain is statutorily provided for in Section 29 and 36 of the CPC whereas that of the 1st Defendant is provided for in Section 23(3) of the Anti-Counterfeit Act which provides that-;An inspector may arrest, without a warrant, any person whom he suspects upon reasonable grounds of having committed any offence under this Act and may search and detain such a person:Provided that no person shall be arrested under this section unless he obstructs or hinders the inspector or refuses to give his name and address to the inspector or to produce to him satisfactory evidence of his identity, or gives a name and address which the inspector has reason to believe to be false or it appears to the inspector that such a person may not be found or made answerable to justice without unreasonable delay, trouble or expense. 95.However, before I proceeded any further, the 1st Defendant raised preliminary contestation in limine concerning the cause of action founded on unlawful or wrongful confinement/false imprisonment premised Section 3(1) of the Public Authorities Limitation Act provides that-;No proceedings founded on tort shall be brought against the Government or a local authority after the end of twelve months from the date on which the cause of action accrued.By dint of Section 2 of the Public Authorities Limitation Act, government includes the 3rd Defendant and by extension the 2nd Defendant however in my understanding does not encapsulate the 1st Defendant. 96.Here, by 1st Plaintiff’s adopted witness statement, on 31/05/2015 he was detained at Spring Valley Police station and locked up for four (4) days however on cross examination it was his evidence that the same was for three (3) days. By all accounts while the 1st Defendant may have been the initial arresting or investigative authority with respect to the counterfeit goods, for all intent and purposes, any unlawful or wrongful confinement or false imprisonment would have been at the behest and within the premises of the 2nd and 3rd Defendant’s agents. 97.The instant suit was filed on 21/06/2016. Going by the days the 1st Plaintiff may have been detained prior to his release translates to 04/06/2015 or 03/06/2015. Either way, going by the Section 3(1) of the Public Authorities Limitation Act, the Plaintiffs had twelve (12) months from the date on which the cause of action accrued to institute a cause of action premised on unlawful or wrongful confinement/false imprisonment. Therefore, by all accounts no claim in respect of the above can sustain as against the 2nd and 3rd Defendant. 98.As to whether a claim for wrongful arrest or confinement can sustain as against the 1st Defendant, Section 23(3) of the Anti-Counterfeit Act speaks for itself. DW1 by his witness statement categorically denied arresting the 1st Plaintiff whereas the latter’s case was that on 31/05/2015, the Administration Police Officers together with Anti-Counterfeit Agencies officers, including Andrew Kimani Ndirangu and Amon Muge took him to Spring Valley Police and had him locked up for four (4) days. 99.What the Court gathers from the totality of evidence presented before this Court is that Andrew Kimani Ndirangu was an Administration Police officer and thus an agent of the 2nd Defendant. Given this Court’s earlier finding concerning Section 3(1) of the Public Authorities Limitation Act, no claim for unlawful arrest and detention could sustain as against the 2nd and 3rd Defendant. 100.However, the Court also gathers from the ruling emanating from the Criminal Case No. 1431 of 2015, was that Amon Muge was a procurement officer with the 1st Defendant, having received instructions from 1st Defendant Assistant Director of Enforcement to proceed to the Plaintiffs premises at Avenue Park II Estate. Mr. Amon Muge was never called as a witness before this Court to deflect the 1st Plaintiff’s claims concerning his unlawful arrest. However, I equally gather that he was one of the persons first on scene at Avenue Park II Estate, going by DW1 evidence, and also heavily involved in the investigations concerning the counterfeit goods. 101.As earlier noted, Section 23(3) of the Anti-Counterfeit Act is self-explanatory meanwhile the Defendants have not led any evidence that either the 1st or 2nd Plaintiffs “obstructed or hindered the 1st Defendants agents or refused to give their name and address to the 1st Defendants agents or to produce to latter satisfactory evidence of their identity, or gives a name and address which the 1st Defendants agents had reason to believe to be false or it appears to the latter that such a person may not be found or made answerable to justice without unreasonable delay, trouble or expense.” 102.As concerns deprivation of one’s liberty the Court of Appeal in Nderitu v Attorney General & another [2019] KECA 1006 (KLR) cited with approval the East African Court of Justice in Samuel Mukira Mohochi vs. Attorney General of Uganda, EACJ Reference No. 5 of 2011 wherein it expressed at Paragraph 108;“Detention is indeed deprivation of liberty and when it is illegal, it is not only an infringement of the freedom of movement, but also an act that undermines one’s dignity.” 103.Aburili J in Daniel Njuguna Muchiri v Barclays Bank Of Kenya Ltd & another [2016] KEHC 2049 (KLR) cited with approval the decision in Njoroge & 17 others v Attorney General [2015] KEHC 1154 (KLR) wherein the court set out elements of false imprisonment as follows:“The gist of an action for false imprisonment is unlawful detention, without more. The commonly accepted definition of false imprisonment defines the tort as: 1.The unlawful restraint of another; 2.Against their will; and 3.Without justification. Proving the first element of false imprisonment involves looking at the facts whether there was any force or threat or some kind used in restraining the accusing party. It is important to note that actual force is not necessary. Proving the second element of false imprisonment involves applying ‘reasonable person’ standard. Thus, the court will determine whether a reasonable person in the same factual situation would believe that they have been detained against their will. The final element of false imprisonment involves determining whether there is a legal basis for the detention. Many legal bases for detention for exist such as a lawful arrest by law enforcement. Determining whether probable or a legal basis for the detention exists is the key in false arrest cases.” 104.On the part of the 2nd Plaintiff, it was her evidence from her adopted witness statement that on 31/05/2015, it was police officers who raided their Loresho home, held her and other family members under house arrest while the officers waited on reinforcement. It would seem that all indications pointed out that the 1st and 2nd Plaintiff were at all material times during the operation compliant and therefore Mr. Amon Muge had no business in aiding the arrest or detention of the 1st Plaintiff which later led to his false imprisonment at Spring Valley Police Station of awardable damages later in this judgment. 105.It was also PW2’s evidence that agents of the 1st Defendant alongside the 1st Plaintiff joined them wherein the latter was under arrest and handcuffed. Given the totality of the forestated, I believe that the 1st Plaintiff has equally made out a case for unlawful arrest and confinement as against the 1st Defendant, to wit, I will proceed to address the question. Whether the 1st Plaintiff is entitled to special damages of Kshs. 3,500,000/- being legal fees and expenses in his criminal defence? 106.Decisions concerning awards on special damages are replete and this Court does not intend to reinvent the wheel on the same. That said, Chesoni, J (as he then was) in the case of Ouma v Nairobi City Council (1976) KLR 304 held that -:“Thus, for a plaintiff to succeed on a claim for special damages he must plead it with sufficient particularity and must also prove it by evidence. As to the particularity necessary for pleading and the evidence in proof of special damage the court’s view is as laid down in the English leading case on pleading and proof of damages, Ratcliffe v Evans (1892) 2 QB 524 where Bowen L J said at pages 532, 533;-The character of the acts themselves which produce the damage, and the circumstances under which these acts are done, must regulate the degree of certainty and particularity with which the damage done ought to be stated and proved. As much certainty and particularity must be insisted on, both in pleading and proof of damage, as is reasonable, having regard to the circumstances and to the nature of the acts themselves by which the damage is done. To insist upon less would be to relax old and intelligible principles. To insist upon more would be the vainest pedantry.”See also-; David Bagine v Martin Bundi [1997] eKLR and Hahn -v- Singh [1985] KLR 716. 107.Here, the Plaintiffs claim Kshs. 3,500,000/- expended in legal fees towards defending the 1st Plaintiff in Criminal Case No. 1431 of 2015. The Defendants position on this claim as captured elsewhere in this judgment is that the Plaintiff despite pleading the claim failed to specifically prove the claim by adducing receipts in respect of payment of the legal fees. 108.A review of the documents relied on by the Plaintiff being Pexh.1-41, they failed to evidence any receipt on proof of payment in respect of the legal fees expended towards defending the 1st Plaintiff in Criminal Case No. 1431 of 2015. Accordingly, the claim as sought cannot sustain and is accordingly declined as sought. Whether the Plaintiffs are entitled to an award of special damages in the sum of Kshs 600,000,000/- being the loss of the value of goods & merchandise seized by the Defendants & profit thereof and whether the Plaintiffs are entitled to general damages for general loss of business? 109.With respect to the above, the Court proposes to contemporaneously address both queries. In support of the above claims, the Plaintiffs saliently relied on evidence of PW2, a Forensic Audit Report on Loss after Raid by the Defendants dated 08/03/2018 prepared by the PW2, a Proforma Invoice dated 04/02/2015 and Inventories in respect of Seized Goods. PW2 seems to have dovetailed to a Site Visit at the 1st Defendant’s depot leading up to a Report prepared by the Deputy Registrar of this Court dated 02/05/2025, that was equally placed before this Court at the close of the respective parties’ evidence, for its consideration. 110.A cursory review of PW2’s report dated 08/03/2018, it shows, at his conclusion, that the 1st and 2nd Plaintiffs, through Swepco General Agencies, suffered a total aggregate loss of Kshs. 2,140,702,318/-. However, it necessitates mentioning at this juncture that from the evidence of PW1, PW2 & PW3, it would appear that the seized goods were interchangeably traded through Swepco General Agencies and the 3rd Plaintiff given that both PW1 & PW3 were proprietors of both Swepco General Agencies and the 3rd Plaintiff. 111.PW2’s report, in respect of, the total aggregate loss of Kshs. 2,140,702,318/-, was broken down as follows-;Loss of Sales from General Trading at Kshs. 993,985,942/-;Loss of Stock from Godown at Kshs. 185,821,450/-;Loss of Stock from Goods onConsignment at Kshs. 360,764,646/-;Loss on Overseas Suppliers at Kshs. 300,148,280/-;Loss on Credibility for Borrowing at Kshs. 300,000,000/-: 112.Firstly, the amount of Kshs. 2,140,702,318/- was never pleaded by the Plaintiffs at the amended plaint. Secondly, in my estimation, the claim for Kshs. 600,000,000/- as pleaded in the amended plaint would entail both loss in respect of Stock from Godown and Stock from Goods on Consignment. However, and notably, the Plaintiffs did not specifically plead in the plaint what goods were lost from the Godown, or that which were on Consignment. Here, I dare add that goods at the Godown would equally be goods on consignment, thus raising a query of double compensation where there is no particularity as to pleading. Nevertheless, I digress. As earlier stated, the Plaintiffs did not specifically plead the nature and quantity of goods lost and the amount they claim to have cost. 113.Secondly, PW2’s report fell short of proper standards, on how the amounts he quantified therein were arrived at. The report ought to have justified the figures therein through either annexing to it invoices, receipts, tax returns, payment vouchers, bank statements, ledger and journals, contracts, schedules & working papers and or any other supporting documentation to the report, towards shoring up its conclusions. As is, the report merely consisted of figures without requisite supporting documentation, to enable the Court formulate a proper finding of the facts contained in the forensic report. 114.Thirdly, a thorough review of the Deputy Registrar’s report dated 02/05/2025, with respect to the site visit at the 1st Defendant Godowns at Athi River, does reveal that some of the seized goods that are still in storage are missing. However, the said report is not instructive as to the Plaintiffs claim in the tune of Kshs. 600,000,000/-. In my estimation other than confirming the quantified missing or damaged items, it does not offer aid to the overarching claim in respect of the aforecaptioned figure. 115.As earlier captured elsewhere in this judgment, the Court in Ouma (supra), David Bagine (supra) and Hahn (supra) unreservedly put it that for a party to succeed on a claim for special damages the party must plead with sufficient particularity and must also prove it by evidence. 116.Addressing the question of lost business opportunity and the ratio in David Bagine (supra), the Court of Appeal in Postal Corporation of Kenya v Gerald Kamondo Njuki t/a Geka General Supplies [2021] KECA 906 (KLR) stated the-;(22)On the issue of assessment of damages, in his plaint, the respondent prayed for damages of Kshs. 205,095,000 as well as damages for breach of contract. The learned Judge only awarded a sum of Kshs. 20 million which she considered sufficient to compensate the respondent. The learned Judge did not make any order regarding the damages of Kshs. 205,095,000 that was sought by the respondent. It is noteworthy that although the respondent claimed a specific sum of Kshs. 205,095,000 which he claimed to be damages arising out of lost business opportunity and unrealized gain, no specific particulars of this loss were pleaded nor did the respondent adduce evidence in proof of the alleged loss.(23)In his evidence the respondent stated that he expected to put up rental containers from which he expected to get a sum of Kshs. 3,360,000 per month for the period of the lease. However, there was no evidence of any containers that he had procured or any professional evidence regarding the comparable income from such rental containers. It is clear that the claim for Kshs. 205,095,000 was not properly pleaded nor established, and the learned Judge ought to have made a specific order dismissing the same. As was stated in David Bagine v Martin Bundi [1997] eKLR, it has been held time and again by this Court that special damages must be pleaded and strictly proved, and a party cannot expect that damages will be awarded on their word without any proof.” 117.Earlier the same Court in Capital Fish Kenya Limited (supra), as relied by the 1st Defendant, stated that -;vi.Loss of business in the sum of Kshs.12,850,000.00.No evidence whatsoever was led by the appellant on this aspect. This, as we already stated elsewhere, was an abstract figure which was thrown to the court with a mere statement that “this is the loss the appellant has suffered. Please award it to the appellant.” In the case of Ryce Motors Ltd & Another vs Muchoki (1995-98) 2 E. A 363 (CAK) commenting on statements of accounts presented without more as in this case stated, this Court observed;“… The pieces of paper produced as evidence of income could not be accepted as correct accounting practice. They did not constitute proof of special damages.”For all the foregoing reasons, we are satisfied that although the trial court correctly found that the special damages had been specifically pleaded, there was no credible evidence whatsoever that proved the pleaded special damages. The trial court’s finding on that score can thus not be faulted.” 118.Consequently, by the foregoing, I believe the Court has reasonably addressed itself to the contemporaneous questions in respect of special damages in the sum of Kshs 600,000,000/- being the loss of the value of goods & merchandise seized by the Defendants & profit; and general damages for general loss of business. Both are accordingly declined. Whether the Plaintiffs are entitled to exemplary and or aggravated damages? 119.Earlier in this judgment, the Court had found in favour of the Plaintiffs concerning the 1st Plaintiff’s malicious prosecution, his unlawful arrest and confinement, which thus brings the Court to the question of awardable damages in respect of the forestated before addressing the twin questions of exemplary and or aggravated damages. 120.Thus, on damages for malicious prosecution, unlawful arrest, false imprisonment and confinement the Plaintiffs submitted that considering the fact that the 1st Plaintiff was a major businessman, his person and business reputation as well as inflationary tendencies the Court ought to award him Kshs. 10,000,000/- as compensation for malicious prosecution, unlawful arrest, false imprisonment and confinement. The decision relied on in respect of the above were captured earlier in this judgment. 121.The Defendants offered no proposal on the above twin question save that the Plaintiffs failed to prove their case on the aforestated to warrant an award. Applying my mind to the facts of the case and drawing some guidance from the decision in Attorney General v James Alfred Koroso [2018] KECA 129 (KLR), I believe an award of Kshs. 5,000,000/- would be sufficient compensation in respect of the 1st Plaintiff’s claim of malicious prosecution as jointly and severally as against the Defendants and Kshs. 800,000/- would be sufficient compensation in respect of the 1st Plaintiff’s claim towards unlawful arrest, false imprisonment and confinement as against the 1st Defendant. 122.As to whether the 1st Plaintiff and by extension the Plaintiffs are entitled to aggravated and or exemplary damages given a positive finding pertaining to the 1st Plaintiff’s malicious prosecution, unlawful arrest and confinement, the Court of Appeal in Bernard Kihiu Matama v Attorney General [2020] KECA 647 (KLR) noted that -;[20] On the issue of exemplary damages, the Judge was equally exercising judicial discretion. It is trite that exemplary or punitive damages, are only awarded in limited instances. The categories of cases in which exemplary damages should be awarded are set out, at paragraph 243 of Halsbury’s Laws of England, as follows:-“Exemplary damages should be awarded only in cases within the following categories: -(1)Oppressive, arbitrary on unconstitutional action by servants of government;(2)Conduct calculated by the defendant to make him a profit which may well exceed the compensation payable to the plaintiff; or(3)Cases in which the payment of exemplary damages is authorized by statute.”(21)We have also found some persuasion in the dicta stated in the celebrated case of Rookes vs. Barnard [1964] I ALL ER 367, where it was held that there are only two categories of cases in which an award of exemplary damages could serve a useful purpose, viz, in the case of oppressive, arbitrary or unconstitutional action by the servants of the government. 123.As to the question of aggravated damages, recently, the Court of Appeal in Matumbi v Tanui [2026] KECA 253 (KLR) pithily put it that-;“26……..Aggravated damages are compensatory, not punitive, and are intended to reflect the enhanced harm suffered” 124.The same Court succinctly went on to make a distinction when aggravated and or exemplary damages may be awarded by stating as follows-;34.We now turn to the award of exemplary damages. The High Court awarded exemplary damages primarily on the basis that the appellant acted maliciously and failed to apologise. While those factors may be relevant in considering aggravated damages, they do not, without more, justify an award of exemplary damages. As we have explained, exemplary damages are punitive in nature and are reserved for exceptional cases falling within narrowly defined categories, such as where the defendant’s conduct was calculated to yield profit exceeding any compensatory award, or where the conduct was oppressive, arbitrary, or unconstitutional.35………….36.In our view, the learned Judge erred in principle by treating malice, without more, as sufficient to ground an award of exemplary damages. That approach risks collapsing the carefully maintained distinction between aggravated and exemplary damages and expands the latter beyond its proper doctrinal limits. Consistent with Kenyan and comparative authority, the award of exemplary damages in this case cannot be sustained.37.We accordingly set aside the award of exemplary damages in its entirety. 125.Here, there is no doubt that the Defendants agents’ actions were unreasonable and oppressive as to be actuated by malice, to wit, if left unabated, there is a likelihood or propensity of the said violation being repeated as against innocent businessmen. To iterate, no reasonable evidence was led to the effect that the Plaintiff had committed a cognizable commission in respect of the counterfeiting, or prior investigations done in respect of the Plaintiffs business as to the question of counterfeiting, or prior intelligence reports on counterfeiting received as against the Plaintiffs or prior complaints by parties whose goods were being counterfeited thereby necessitating the Defendants action towards arbitrarily raiding both the Plaintiffs business and residential premises, on reasonable and probable cause or suspicion of counterfeiting. 126.Further, by dint of Section 23(3) of the Anti-Counterfeit Act, there was no demonstration that either the 1st or 2nd Plaintiff obstructed or hindered the 1st Defendants agents from performing their statutory duties. Therefore, it is this Court’s reasoned deduction that the Plaintiffs are entitled to exemplary damages as against the Defendants. And thus, proceed to award him Kshs. 500,000/- in exemplary damages with due reference to the decision in James Alfred Koroso (supra). Whether the 1st Defendant is entitled to accrued storage charges and whether the Plaintiffs are liable to settle the same? 127.Here, the 1st Defendant through DW1, DW2, DW3 & DW4 advanced its counter-claim through the aforestated witnesses, concerning the issue of accrued storage charges. Reference was made to a raft of documents appearing in the 1st Defendant list of documents dated 13/10/2023 and adduced into evidence by DW1 as Dexh.1-14. Of particular interest to the claim were documents Dexh.12 & 13 appearing therein. Being lease documents in respect of the warehouses in question where the Plaintiffs goods purportedly still remain in storage. 128.However, before I address myself the above, both PW1 and DW1 by their own evidence confirmed release of some of the seized goods. Notably, the 1st Defendant’s counterclaim as pleaded hinges on the averment that pursuant to an order of the trial Court in Milimani Criminal Case No. 1031 of 2015, the Court had ordered for release of the seized goods, to wit, an invitation was made to the Plaintiffs to collect them on 16/03/2017. 129.While it is not dispute that the some of the goods were released and collected by the Plaintiffs, in my estimation, the 1st Defendant counter-claim on accrued storage charges hinges on the criminal Court’s purported release order and invitation by the 1st Defendant made on 16/03/2017, to the Plaintiffs. 130.As observed in Wareham t/a A.F. Wareham (supra) and Karugi (supra) onus was on the 1st Defendant to adduce evidence on actual there being an actual release order and the said invitation to the Plaintiffs, to wit, its claim on storage charges would accrue given the Plaintiffs failure and or refusal to collect the seized goods and or remaining seized goods in the 1st Defendants possession. 131.As is, a cursory perusal of Dexh.1-14, there is no evidence of the order in question, or a request by the 1st Defendant and or demand by the latter towards the Plaintiffs to come collect the said goods. Thus, I reasonably, believe the 1st Defendant cannot now spring the said claim on storage charges in the absence of the said Court order in question, the said invitation and or demand upon the Plaintiffs to collect the seized goods that were and or still in the 1st Defendant’s custody. To the foregoing end, the 1st Defendant’s counterclaim cannot reasonably be sustained in the absence of the above questioned documents in proof of the averments in the counterclaim on a balance of probabilities. Final Disposition 132.In the end, the Court finds and holds the 1st Defendant liable and enters judgment in favour of the Plaintiffs accordingly as hereunder -:a.General damages in respect of malicious prosecution of the 1st Plaintiff is entered in favour of the Plaintiffs in the sum of Kshs. 5,000,000/- jointly and severally as against the Defendants.b.Exemplary damages in respect of malicious prosecution of the 1st Plaintiff is entered in favour of the Plaintiffs in the sum of Kshs. 800,000/- jointly and severally as against the Defendants.c.General damages in respect of unlawful arrest, false imprisonment and confinement of the 1st Plaintiff is entered in favour of the Plaintiffs in the sum of Kshs. 500,000/- as against the 1st Defendant.d.Special damages – NILe.1st Defendants Counter-claim is dismissed.The above amount in (a) (b) & (c) shall attract interest at Court rates from the date of this judgment until full settlement. 133.Finally, on costs, applying my mind to the provision of Section 27 of the Civil Procedure Act, I award the Plaintiffs costs of the suit to be borne jointly and severally by the Defendants. However, with respect to the 1st Defendant’s counter-claim, I direct that each party bears their own costs.Orders accordingly. DELIVERED DATED AND SIGNED AT NAIROBI THIS 4TH DAY OF JUNE 2026……………………….JANET MULWA.JUDGE