Mukonya v Equity Bank Limited & another (Civil Appeal 573 of 2019) [2025] KECA 1720 (KLR)
The bottom line
#The Court of Appeal dismissed a man's claim against Equity Bank for unlawful arrest and malicious prosecution, confirming that proving malice is essential in such cases.
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 appellant was unlawfully arrested and unlawfully imprisoned/detained
- 2.Whether the criminal prosecution against the appellant was malicious and instituted without reasonable and probable cause
- 3.Whether the appellant's detention of three days before arraignment violated the constitutional requirement to be brought to court promptly
- 4.Whether the appellant established special damages and entitlement to damages for defamation, mental anguish and loss
Key legal issues
#Elements of malicious prosecution
The four elements - prosecution initiated by the defendant, termination in the plaintiff's favour, absence of reasonable and probable cause, and malice - are conjunctive and all must be proved
The court restated the long-adopted elements of the tort and stressed that while absence of reasonable and probable cause may be indicative of malice, the plaintiff must do more to show the prosecution was actuated by malice or an ulterior purpose other than carrying the law into effect. The appellant failed to prove malice by the Bank or the police.
Whether there was reasonable and probable cause for the complaint, arrest and prosecution
Yes - the discrepancy between the name on the cheque and the appellant's identity card justified the Bank's complaint and the police investigation and charge
The name on the cheque differed from that on the appellant's identity card. The defence evidence that the appellant was rude and failed to explain the discrepancy was uncontroverted, so the Bank was justified in lodging a complaint. The exculpatory UN clarification came only after charge; had it been available earlier, charging would have been reckless.
Lawfulness of the arrest and detention
The arrest was justified pending further investigation, and detention from Friday to Monday arraignment complied with section 72(3) of the repealed Constitution
Rudeness alone cannot justify arrest, but here the appellant's conduct led the complainant and investigator to believe a crime had been committed. The 24-hour period expired on a Sunday, so arraignment on Monday 8th December 2008 was as soon as reasonably practicable.
Uncontroverted defence evidence and burden on the appellant
Evidence not challenged in cross-examination stands, and a party who withholds a key document cannot rely on it on appeal
The appellant claimed to have given the Bank an affidavit explaining the name discrepancy but did not produce it, and did not put the alleged affidavit to defence witnesses. DW1's testimony that the plaintiff became rude and failed to explain was never challenged and was therefore accepted.
Legal principles established
#- The four elements of the tort of malicious prosecution are conjunctive; absence of reasonable and probable cause alone does not establish malice - the plaintiff must additionally prove the prosecution was actuated by malice
- On a first appeal, the Court of Appeal re-evaluates the evidence afresh and draws its own conclusions, while making due allowance for not having seen or heard the witnesses
Court orders
#- 1.The appeal is dismissed
- 2.Costs of the appeal to the 1st respondent (Equity Bank)
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi (Milimani)
- Jurisdiction invoked
- First appeal to the Court of Appeal under its appellate jurisdiction
Relief refused
#Setting aside the High Court judgment and the prayers in the plaint dated 19th June 2009 (general, punitive and exemplary damages for unlawful arrest, false imprisonment, defamation, financial and credibility loss)
The appeal was found to be without merit; reasonable and probable cause existed for the complaint, arrest and prosecution, and malice was not proved
Costs
The appeal is dismissed with costs to the 1st respondent (Equity Bank). No costs order recorded in respect of the 2nd 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 the end, the appeal is without merit and is hereby dismissed with costs to the 1st respondent.
The four elements are conjunctive so that even in the absence of reasonable and probable cause, still, the plaintifi must prove that the prosecution was actuated by malice.
What amounts to reasonable and probable cause is the existence of a state of circumstances that would reasonably lead a prudent and conscious accuser or prosecutor to the conclusion that the suspect is probably guilty of the crime he is accused of.
just like the trial court, we come to the conclusion that there was just and probable cause for the appellant to be charged.
Regarding the arrest, we agree with the appellant that rudeness and uncooperativeness alone should not be a basis for arresting a person.
We must further uphold the finding of the trial court that under the circumstances, the Bank was justiied and duty bound to lodge a complaint.
Issues in the judgment
#The appellant's detention complaint was argued under Article 49 of the 2010 Constitution although the detention occurred in 2008 under the repealed Constitution; the court applied the correct provision (section 72(3) of the repealed Constitution)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mukonya v Equity Bank Limited & another (Civil Appeal 573 of 2019) [2025] KECA 1720 (KLR)", Case Analysis (2025). Court of Appeal Appeal (Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1720/eng@2025-10-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.