Odaba v Commissioner General, Kenya Revenue Authority & another (Civil Appeal E055 of 2020) [2026] KECA 1144 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that winning an acquittal is not enough to sue for malicious prosecution — you must also prove the prosecution was groundless and malicious.
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 learned Judge erred in law in affirming the trial court's finding that the appellant failed to prove false arrest and unlawful detention
- 2.Whether the appellant proved that the prosecution was instituted without reasonable and probable cause
- 3.Whether the appellant proved that the prosecution was actuated by malice
- 4.Whether the first appellate Judge failed to re-evaluate the evidence as required of a first appellate court
Key legal issues
#Whether reasonable and probable cause existed for the appellant's arrest and prosecution
Yes - the recovery of a missing KRA receipt linked to the appellant by witnesses gave the respondents reasonable and probable cause
Two KRA receipt booklets were reported missing and a public notice issued. One of the missing receipts resurfaced during clearance of a cabin imported from Uganda, and two witnesses in the criminal case identified the appellant as the person who issued it. The court held the two courts below correctly found probable and reasonable cause to suspect the appellant's involvement and to effect his arrest.
Whether the appellant proved malice
No - no evidence of spite, ill-will, improper motive, or purpose other than enforcement of the law was tendered
The court found no evidence demonstrating that the respondents were actuated by improper motive. The record showed they acted upon a complaint regarding missing KRA receipt books and pursued investigations after a receipt resurfaced during a customs clearance transaction. Weaknesses in identification evidence only explained why the criminal case failed on proof beyond reasonable doubt.
Whether the first appellate Judge failed to re-evaluate the evidence
No - the Judge properly reconsidered the evidence and correctly appreciated the applicable principles
The Court reviewed the High Court judgment and was satisfied the learned Judge properly reconsidered the evidence and correctly appreciated the principles governing malicious prosecution and false imprisonment claims. It discerned no misdirection warranting interference by a second appellate court.
Legal principles established
#- A second appellate court confines itself to matters of law and will not interfere with concurrent findings of fact absent misdirection or perversity
- An acquittal per se does not establish malice or absence of reasonable and probable cause; a prosecution does not become malicious merely because it fails
- A claimant in malicious prosecution must satisfy all four ingredients; failure to establish any one is fatal
- The fact that a prosecution ultimately fails does not retrospectively render the reasons for the arrest unlawful
- Imperfect investigations or failure to secure sufficient evidence do not, without more, establish malice
Court orders
#- 1.The appeal is dismissed
- 2.No order as to costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Busia
- Not stated
- Jurisdiction invoked
- Second appeal to the Court of Appeal confined to matters of law
Relief refused
#Setting aside the High Court judgment and allowing the appeal with costs
The appellant failed to establish absence of reasonable and probable cause or malice
Costs
No order as to costs - 'As the respondents did not participate in the appeal, we make no order as to costs.'
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, we find no merit in this appeal. The appellant failed to establish that the respondents acted without reasonable and probable cause or that the prosecution was actuated by malice. The appeal is accordingly dismissed.
As the respondents did not participate in the appeal, we make no order as to costs.
As has repeatedly been stated by this Court, an acquittal per se does not establish malice or absence of reasonable and probable cause. A prosecution does not become malicious merely because it ultimately fails.
The fact that the prosecution ultimately failed does not retrospectively render the reasons that informed the appellant's arrest unlawful.
This Court, on second appeal, confines itself to matters of law unless it is shown that the two courts below considered matters they should not have considered or failed to consider matters they should have considered or looking at the entire decision, it is perverse.
Issues in the judgment
#The judgment charges as drafted contain duplicate numbering ('Count IV' appears twice) and apparent OCR errors ('ofience', 'afirmed', 'suficient') in the text provided
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Odaba v Commissioner General, Kenya Revenue Authority & another (Civil Appeal E055 of 2020) [2026] KECA 1144 (KLR)", Case Analysis (2026). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1144/eng@2026-06-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.