Kirimi v Meru Central Dairy Co-op Limited (Civil Appeal 18 of 2020) [2025] KECA 1262 (KLR)
The bottom line
#Kenya's Court of Appeal dismissed a driver's appeal, confirming he failed to prove malice in his malicious prosecution claim against his former employer.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.whether the appeal before the High Court was incompetent for lack of a decree
- 2.whether the first appellate court analysed the evidence on record
- 3.whether the learned judge considered matters that were irrelevant to the appeal before him thus arriving at a wrong decision
Key legal issues
#Whether an appeal to the High Court from a magistrate's court is incompetent in the absence of an extracted decree
The appeal was not incompetent. The rules require the judgment, order or decree to be filed; since the judgment was on the record, no prejudice was suffered, and the judge properly directed extraction of the decree as the duty of the court.
Order 42 rule 13(4) requires, before an appeal proceeds to hearing, among other documents, 'the judgment, order or decree appealed from' — in the disjunctive. The judgment was part of the record. The respondent also failed to appeal the direction to extract the decree, and the decree was in fact filed before judgment, so the objection was academic and waived.
Whether the first appellate judge failed to analyse and evaluate the evidence
The ground failed; the learned judge analysed the record and evaluated the evidence, and his analysis formed the basis of the appeal, even if one disagrees with his findings.
The role of a first appellate court is to re-evaluate the evidence and arrive at an independent decision, as restated in Abok James Odera v John Patrick Machira. The Court of Appeal found several paragraphs of the High Court judgment demonstrated analysis and evaluation of the record; the complaint of non-analysis was an understatement without merit.
Whether the High Court erred by considering the criminal case evidence and criticising the criminal court's judgment
The Court agreed only that the detailed account of the criminal case was unnecessary, but held that the issue was whether the tort of malicious prosecution was proved, and it was not.
To prove malicious prosecution, absence of probable cause and malice must be shown, and malice must be proved. Here the employer had entrusted goods to the respondent which were unaccounted for, and the respondent created a disturbance at its offices; the police investigated and charged independently. No iota of malice was proved on a balance of probabilities.
Whether the High Court erred in assessing damages while dismissing the claim on liability
The quantum issue was not relevant before the learned judge, as he had not found the respondent liable; his assessment of damages did not negate his finding on liability.
A court's statement of the damages it would have awarded had liability been established does not disturb its primary finding that no liability was proved; where the defendant is found not liable, the entire quantum falls away. This ground also failed.
Legal principles established
#- Failure to file the decree with the memorandum of appeal does not render a first appeal to the High Court incompetent where the judgment appealed from forms part of the record; the rules require the judgment, order or decree.
- On a second appeal, the Court of Appeal is confined to points of law and will not interfere with findings of fact unless the courts below considered matters they should not have, failed to consider matters they should have, or the decision is perverse.
- A plaintiff in malicious prosecution must prove all four elements — institution by the defendant, termination in the plaintiff's favour, absence of reasonable and probable cause, and malice — which must unite to create the cause of action, and malice must be proved on a balance of probabilities.
- A party who complains of an interlocutory direction (such as one directing extraction of a decree) but does not appeal or seek review against it cannot later raise it in an appeal against the final judgment; the objection is waived.
Court orders
#- 1.Appeal dismissed
- 2.Costs of the appeal awarded to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya
- Jurisdiction invoked
- Section 72(1) of the Civil Procedure Act (second appeal on points of law); Section 66 of the Civil Procedure Act confers the right of appeal from the High Court
Relief refused
#Setting aside the High Court judgment and reinstating the trial court's award of Kshs 5,000,000 general and Kshs 200,000 special damages
The High Court properly found no malice or want of probable cause was proved; the elements of malicious prosecution were not established
Costs
We dismiss the same with costs to the respondent.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
In our view, failure to file the decree with the memorandum of appeal did not render the appeal incompetent, as the rules require either the judgment, order, or decree to have been filed.
Ultimately, we find the appeal not merited. We dismiss the same with costs to the respondent.
To prove a case of malicious prosecution, the appellant was required to demonstrate that there was no probable cause for the trial and that the trial was conducted with malice. Further, he was required to prove the alleged malice.
It is not enough to make a claim. The claim must be supported by evidence that proves the claim on a balance of probabilities.
This being a second appeal, our mandate is limited only in determining points of law and not of fact as set out under Section 72(1) of the Civil Procedure Act
when the learned judge made the order for the decree to be submitted, the respondent did not seek to appeal against that order and, therefore, he cannot be heard several months later to raise the issue, in an appeal against the judgement.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kirimi v Meru Central Dairy Co-op Limited (Civil Appeal 18 of 2020) [2025] KECA 1262 (KLR)", Case Analysis (2025). Court of Appeal Civil Appeal (Nyeri), memorandum of appeal dated 10th February 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1262/eng@2025-06-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.