Nyoro Construction Co. Ltd v Kahiga (Civil Appeal E057 of 2022) [2026] KEHC 7539 (KLR) (28 May 2026) (Judgment)

**REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MURANG’A** **CIVIL APPEAL NO. E057 OF 2022** **NYORO CONSTRUCTION CO. LTD.........................APPELLANT** **VERSUS** **JOSEPH WANDERI KAHIGA..............................RESPONDENT** *(Being an appeal against the Judgment of Hon. S.K. Nyagah (SRM) delivered on 21st October 2022 in Kangema CMCC No. 345 of 2018)* **JUDGMENT** 1. This appeal arises from the Judgment of the Senior Resident Magistrate delivered on 21st October 2022 in Kangema CMCC No. 345 of 2018, wherein the trial court entered judgment in favour of the Respondent and awarded general damages of Kshs. 400,000/= for malicious prosecution and false imprisonment. 2. The Respondent had instituted the suit before the subordinate court on allegations of having been maliciously prosecuted in Kangema MCCR No. 299 of 2013 for the offence of stealing by servant. He pleaded that the prosecution had been instigated by the Appellant, without reasonable or probable cause and that the criminal proceedings terminated in his favour, upon acquittal on 11th September 2014. 3. The Appellant was aggrieved by the judgment of the trial court, and lodged the present appea,l challenging the findings on both liability and quantum. **Grounds of Appeal** 1. The Memorandum of Appeal raises, in summary, the following complaints: a. *That the learned magistrate erred in law and fact in entertaining a suit that was statute barred;* *b. That the trial court erred in failing to set aside leave allegedly granted irregularly to file the suit out of time;* *c. That the Respondent failed to prove the tort of of malicious prosecution;* *d. That no evidence was tendered to establish agency or participation by the Appellant in the prosecution;* *e. That the award of damages was excessive in the circumstances.* 5. The Appeal was heard by way of written submissions. **Appellants Submissions** 1. It is the Appellant’s submission that the suit was filed well beyond the statutory limit; that the Respondent was acquitted on 11th September 2014, and consequently the three-year limitation period under Section 4(2) of the Limitation of Actions Act expired on 11th September 2017. The suit was filed on 5th October 2018, which the Appellant contends was over a year after the deadline. 2. The Appellant argues that time cannot be extended for the tort of malicious prosecution, and has relied on the decision in the case of ***Mary Osundwa v Sugar Company Limited (2002) eKLR.*** 3. The Appellant further submits that the trial court erred in not setting aside the ex parte leave that had been granted on 1st August 2016, despite having argued for its dismissal. That based on the decision in the case of ***Oruta & Ano vs Nyamato ( 1988) KLR*** ***590*** and ***John Gachanja Mundia Francis Muriira & Ano (2017) e KLR***, they correctly challenged the leave during the hearing of the substantive suit. 4. The Appellant further submits that there was no evidence of an agency relationship between themselves and the police. They cite ***Total Kenya Limited v D Pasacon General Construction & Electrical Services (2022)KECA 593*** to argue that a principal- Agency relationship must exists . It is argued that the Respondent failed to produce evidence of express or implied authority from the Appellant to prosecute the respondent. **Respondent’s Submissions** 1. The Respondent submits that the court rightfully used its discretion to grant to leave to file the suit out of time in the interest of justice. He contends that no appeal was preferred against the order of 1st August 2016, and therefore the suit was properly before the court. 2. The Respondent contend that his arrest was set in motion by the Appellant, who made a report at the police station through its Agent and therefore cannot feign ignorance of his arrest and prosecution. He has relied on the decision in the case of ***Samson John Nderitu v The Attorney General (2010)eKLR*** to argue that the Appellant failed to conduct proper inquires before making the report. 3. The Respondent therefore urges the court not to interfere with the trial court’s assessment, citing ***Butt v Khan KLR 349***, arguing the award was fair and reasonable given the dignity suffered. **Analysis and determination** 1. This being a first appeal, this court has the duty to review the evidence, carry out its own evaluation, and arrive at its own conclusion, while making due allowance for the fact that the trial court had the advantage of hearing the witnesses first-hand. This principle was long established in ***Selle & Another v Associated Motor Boat Co. Ltd & Others* [1968] EA 123.** 2. Upon consideration of the grounds of appeal and submissions, the following are the issues that arise for determination: *a). Whether the suit was statute- barred and whether the extension of time was erroneous.* *b). Whether the Appellant was liable for malicious prosecution.* *c). Whether the award of damages was excessive.* **Whether the Suit was Statute- barred** 1. The Appellant submits that the cause of action accrued on 11th September 2014 when the Respondent was acquitted and that the suit filed on 5th October 2018 was outside the three-year limitation period prescribed under Section 4(2) of the **Limitation of Actions Act,( Cap 22 Laws of Kenya. )** 2. The Respondent on the other hand argues that leave had been granted by the court to file the suit out of time and that the said order was never appealed against or set aside. 3. Section 4(2) of the Limitation of Actions Act provides that actions founded on tort may not be brought after the end of three years from the date on which the cause of action accrued. The cause of action therefore accrued upon acquittal or termination of the criminal proceedings in favour of the accused person. (***See Mbowa v East Mengo District Administration [1972] EA 352.)*** 4. From the record, the Respondent was acquitted on 11th September 2014. The suit was filed on 5th October 2018. The suit was four years late, and it was therefore time- barred. 5. The next issue that then arises is whether the leave purportedly granted to the Respondent to file the suit out of time was legally available in respect of the tort of malicious prosecution. The Court of Appeal in ***Mary Osundwa*** *(*supra*)*held that extension of time under Sections 27 and 28 of the Limitation of Actions Act is only available in actions founded on negligence, nuisance or breach of duty involving personal injuries and does not extend to claims founded on malicious prosecution. Further in **Divecon Ltd v Samani [1995-1998] 1 EA 48,** the Court of Appeal emphatically stated that no court may extend time for filing suits founded on contract or tort except as specifically provided for under the Act. 6. Thus the leave that had been purportedly granted by way of miscellaneous Application had no basis in law. I further agree with the Appellant that the issue of the legality of the leave ought to have been dealt with by the trial court during the hearing of the substantive suit, and not by way of an Appeal as suggested by the respondent. ( see: ***John Gachanja vs Francis Mundia*** ( supra). The purported extension therefore had no basis in law. It was illegal. **Whether the Respondent Proved Malicious Prosecution** 1. Whereas the court’s finding on the time bar is sufficient to dispose of this appeal, I shall nonetheless consider whether the Respondent proved the tort of malicious prosecution. 2. The ingredients of malicious prosecution were succinctly stated in *Murunga v Attorney General* [1979] KLR 138 and later reiterated in *Samson John Nderitu v Attorney General* [2010] eKLR. Where it was stated that the claimant must prove: That the prosecution was instituted by the defendant or by someone for whose acts he is responsible; That the prosecution terminated in favour of the plaintiff; that the prosecution was instituted without reasonable and probable cause; and finally that, the prosecution was actuated by malice. 3. There is no dispute that the criminal proceedings terminated in favour of the Respondent. However, it is trite law that an acquittal alone does not automatically establish malicious prosecution. It was upon the Respondent to prove absence of reasonable and probable cause and existence of malice. 4. I have considered the respondent’s evidence, and it comes out that there was no sufficient evidence demonstrating that the Appellant actively instigated the prosecution beyond the mere act of reporting the incident to the police. The police are required to conduct their independent investigations. Further the decision to to charge, or not, ultimately and exclusively, rests with the Director of public prosecution. ( Ref: ***Article 157 (10) of the constitution.***) 5. Further, the Court of Appeal in ***Total Kenya Limited v D. Pasacon (supra)*** emphasized that liability does not attach merely because a party reported a matter to the police unless it is shown that the party influenced or controlled the decision to prosecute. 1. Upon re-evaluation of the evidence, I am not satisfied that the Respondent proved malice or lack of reasonable and probable cause on the part of the Appellant. I therefore find that the claim for malicious prosecution failed the threshold of proof. **C. Whether the Award of Damages was Excessive** 1. It is now a well-established principle of law that an appellate court will only interfere with an award of damages where the trial court acted on wrong principles, misapprehended the evidence, or made an award that is either too excessive or too low. (See: ***Butt v Khan* [1982-88] KAR 1**. I do not consider the award to have been too excessive to have otherwise warranted the intervention of this court. 2. In conclusion, the appeal succeeds, and the following orders are hereby issued. a). The Judgment of the trial court delivered on 21st October 2022 in Kangema CMCC No. 345 of 2018 is hereby set aside in their entirety; and is hereby substituted with an order that the plaintiff’s suit is hereby struck off. b). The Appellant shall have the costs of the appeal and the suit Dated, signed and delivered virtually, at Isiolo this 28th day of May, 2026. S. Chirchir Judge. In the presence of: Roba Katelo- court Assistant Mr. Ndonga holding brief for Mwangi Mbuthia for the Appellant Ms. Waititu for the Respondent. Bottom of Form