The Hon. Attorney General v James Alfred Koroso
The bottom line
#Kenya's Court of Appeal upheld Shs 11 million damages against the State for false imprisonment and malicious prosecution, but struck out constitutional damages that were never pleaded.
What this practically means
#Executive summary
#Key legal issues
#Effect of a defendant calling no evidence in support of its statement of defence
The trial Judge did not err in treating the respondent's evidence as uncontroverted; assertions in a defence unsupported by evidence remain mere allegations.
The appellant filed a statement of defence of bare denials and called no witnesses, including the complainant, and produced no investigation diary or documentary evidence. Sections 107 and 108 of the Evidence Act place the burden on he who asserts. The respondent's evidence, corroborated by several witnesses including a medical report and his passport showing he was outside Kenya when the lorry was stolen, remained unchallenged and proved his case on a balance of probabilities.
Elements of malicious prosecution
All four conditions laid down in George Masinde Murunga v Attorney General were fulfilled and the claim of malicious prosecution was proved.
The prosecution was instituted by police officers represented by the appellant; it terminated in the respondent's favour by acquittal under Section 210 of the Criminal Procedure Code; there was no direct or circumstantial evidence linking the respondent to the alleged stolen motor vehicle; and the respondent was lured from Tanzania, tortured from Taveta to Kiambu, and denied medical treatment and access to relatives, which evidence was unchallenged and showed ulterior motives and bad faith.
Damages for violation of constitutional rights not pleaded
The trial Judge erred in awarding Kshs. 10,000,000 for violation of constitutional rights which the respondent had not claimed; a party is bound by its pleadings.
The plaint sought tort damages only; the constitutional claim was not pleaded. Further, the awards for malicious arrest, illegal detention and prosecution already covered the same elements of inhuman and degrading treatment. Relying on Anthony Francis Wareheim, the court held that a court should not grant relief not sought in the pleadings. This ground of appeal succeeded and the constitutional damages award was set aside.
Quantum of damages for false imprisonment, malicious prosecution and exemplary damages
The awards of Kshs. 10,000,000 general damages and Kshs. 1,000,000 exemplary damages were reasonable and comparable to recent awards by the Court and should not be disturbed.
The court compared the awards with recent decisions including Gitobu Imanyara, Peter M. Kariuki and Koigi Wa Wamwere, noting each case must be determined on its own peculiar facts. Exemplary damages were justified to punish the egregious conduct of the police authorities where malice was established; they do not amount to double compensation.
Legal principles established
#- A first appellate court must reconsider and re-evaluate the evidence and draw its own conclusions, while making allowance for not having seen or heard the witnesses.
- A party who asserts facts must prove them; where a defendant files a statement of defence but calls no evidence, the plaintiff's uncontroverted evidence stands and the defence remains mere allegations.
- Four conditions must be fulfilled for a claim of malicious prosecution to succeed: institution of prosecution by the defendant, termination in the plaintiff's favour, absence of reasonable and probable cause, and malice.
- A court should not make findings on matters not pleaded or grant relief not sought in the pleadings; a party is bound by its pleadings.
- An appellate court will not disturb an award of damages unless it is so inordinately high or low as to represent an entirely erroneous estimate, or the judge proceeded on wrong principles or misapprehended the evidence.
- Where a person alleged to have committed an offence is outside the state seeking to exercise jurisdiction, the lawful method of securing his return is extradition, not luring and abduction; removing a person from another country without extradition proceedings is guided by malice for purposes of the law.
Court orders
#- 1.The award of Kshs. 10,000,000/= for violations of constitutional rights is set aside
- 2.The respondent is entitled to the award of damages for the torts of false imprisonment and malicious prosecution of Kshs. 10,000,000/=
- 3.The respondent is entitled to the award of exemplary damages of Kshs. 1,000,000/=
- 4.Each party shall bear their own costs in the High Court and in this Court
- On appeal from
- High Court of Kenya at Nairobi
- H.C.C.C No. 2966 of 1996
- Jurisdiction invoked
- First appellate jurisdiction over the High Court under the Court of Appeal Rules (appeal as of right from the High Court; Rule 100 and Rule 32 of the Court of Appeal Rules invoked)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (3)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Kerich v Menjo & 6 others (Environment and Land Case 46 of 2018) [2026] KEELC 3605 (KLR)[2026] KEELC 3605 (KLR)11 Jun 2026applied
- Rugut & 2 others v Rono (Environment and Land Appeal E023 of 2024) [2026] KEELC 3442 (KLR)[2026] KEELC 3442 (KLR)4 Jun 2026
- Rono & 3 others (Suing as the personal representatives of the Estate of Chumo Arap Chabas alias Chumo Chebas - Deceased) v Langat (Sued as the legal representative of the Estate of Joel Kimetet Langat) & another (Environment and Land Case 40 of 2017) [2026] KEELC 3435 (KLR)[2026] KEELC 3435 (KLR)4 Jun 2026applied
Cite this brief
#Cite this brief
Caselaw, "The Hon. Attorney General v James Alfred Koroso", Case Analysis (2018). Civil Appeal No. 163 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/129/eng@2018-03-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.