Kathingo & another v Musee & another (Civil Case 54 of 2014) [2025] KEMC 110 (KLR)
The bottom line
#A Kenyan court dismissed a compensation claim for arrest and prosecution, ruling that being acquitted after a criminal trial does not automatically make the arrest or prosecution unlawful.
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 plaintiffs were unlawfully arrested
- 2.Whether the plaintiffs were falsely imprisoned
- 3.Whether the plaintiffs were maliciously prosecuted owing to the defendants' actions
- 4.Whether the plaintiffs are entitled to damages as against the defendants or any one of them
- 5.Who is to bear the costs of the suit
Key legal issues
#Whether the plaintiffs' arrest was unlawful
The arrest was not wrongful or unlawful; the police had reasonable suspicion and probable cause based on the complaint, witness statements, P3 form and scene visit
The law requires reasonable grounds before arrest (sections 29(a) and 58 CPC-equivalent provisions of the National Police Service Act and Article 49 of the Constitution). The criminal proceedings showed the investigating officer received a report from an apparently injured complainant, issued a P3 form, recorded statements and visited the scene. Applying a 'totality of the circumstances' analysis, the information sufficed to justify arrest even if ultimately false, and the plaintiffs led no evidence of the circumstances of arrest.
Whether the plaintiffs were falsely imprisoned
No; since the arrest was lawful, the ensuing detention was not unlawful, and the 1st defendant played no part in the detention
False imprisonment requires detention plus absence of lawful authority. Having found reasonable suspicion and probable cause for the arrest, the court held the detention lawful. Further, the 1st defendant merely lodged a report; the decision to arrest and detain was made independently by the police, so no liability attaches to him for the detention.
Whether the plaintiffs were maliciously prosecuted
No; the plaintiffs failed to prove absence of reasonable and probable cause and malice, and no claim lies against the 1st defendant
The four Mbowa/Murunga elements must all unite. The prosecution terminated in the plaintiffs' favour, but the prosecution was instituted by the police and the DPP, not the 1st defendant. The criminal court had found a prima facie case and put the plaintiffs on their defence before acquitting on evidentiary inconsistencies, indicating probable cause. No evidence of ill-will against any police officer was adduced; mere acquittal or investigative lapses do not establish malice.
Effect of interlocutory judgment against the 1st defendant
The plaintiffs still bore the burden of proving liability; interlocutory judgment does not dispense with proof of the claim
Relying on Mohamed Guyo Boru and EMC v James Irungu Nyanja, the court held that an interlocutory judgment is interim and that at formal proof the plaintiff must still demonstrate liability. Given the nature of the claim, the plaintiffs' failure to prove malice and lack of probable cause meant the suit failed even against the defaulting 1st defendant.
Legal principles established
#- Acquittal on a criminal charge is not, per se, a sufficient basis to ground a suit for malicious prosecution; malice or spite must be proved
- A claim for malicious prosecution cannot lie against a private complainant who merely reports a crime; the decision to prosecute rests with the DPP
- Reasonable and probable cause requires both a subjective honest belief in guilt and objectively reasonable grounds
- Where a plaintiff is acquitted after a full trial in which he was placed on his defence, it is difficult to find that the prosecution was instituted without reasonable and probable cause
- The burden of proof remains on the plaintiff on a balance of probabilities even where the defendant calls no evidence or where interlocutory judgment has been entered
- A case may still be dismissed on formal proof notwithstanding entry of interlocutory judgment against a defaulting defendant
Court orders
#- 1.The plaintiffs' suit against the defendants is dismissed
- 2.There shall be no order as to costs of the suit, as the defendants did not actively participate in the proceedings
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Original civil jurisdiction over claims in tort (false arrest, false imprisonment and malicious prosecution); no specific constitutional or statutory provision cited as the source of jurisdiction
Relief refused
#General damages for false and unlawful arrest and imprisonment
The arrest was founded on reasonable grounds/suspicion following the 1st defendant's complaint and the police's own investigations; the detention was therefore not unlawful
General damages for malicious prosecution
Plaintiffs failed to prove absence of reasonable and probable cause and malice; acquittal alone is insufficient; the 1st defendant had no control over the prosecution
Special damages of Ksh. 125,000/=, costs and interests
Suit dismissed in its entirety; no reliefs granted against either defendant
Costs
No order as to costs - 'As the defendants did not actively participate in the proceedings, there shall be no order as to costs of the suit.'
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.
The upshot of the above considerations is that the plaintifis have failed to prove their case against the defendants on a balance of probabilities. On the basis thereof, I make a finding that the plaintifis are not entitled to the reliefs sought or to any remedy at all as against the defendants. The unfortunate or fortunate result as the case may be, is that the plaintifis' suit against the defendants is hereby dismissed.
As the defendants did not actively participate in the proceedings, there shall be no order as to costs of the suit.
It is trite learning that acquittal, per se, on a criminal case charge is not suficient basis to ground a suit for malicious prosecution. Spite or ill will must be proved against the prosecutor.
This is tantamount to a subjectively honest belief founded on objectively reasonable grounds that the institution of proceedings was justified.
A plaintifi cannot just come to court and say, "Look, I was charged with a criminal ofience but was acquitted. I deserve to be compensated
in my view, the information that the police had was suficient to cause the plaintifis to be arrested. It does not matter that the information could have been false.
Issues in the judgment
#The judgment states the 2nd defendant entered appearance and filed defence on 17/3/2024, which appears inconsistent with the plaint filed 19/2/2014 and interlocutory judgment of 12/6/2019; the year 2024 may be a typographical error for an earlier year
The plaintiffs' testimonies on the dates of arrest conflict with the charge sheet: the 1st plaintiff testified he was in custody for five days yet charged on the same date of arrest, and the charge sheet indicates arrest on 3/6/2011
The civil suit number of this matter is not stated anywhere in the judgment; only the underlying criminal case number (Makindu Criminal Case No. 648 of 2011) is given
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kathingo & another v Musee & another (Civil Case 54 of 2014) [2025] KEMC 110 (KLR)", Case Analysis (2025). Not stated in the judgment (suit filed by plaint dated 19/2/2014; arising from Makindu Criminal Case No. 648 of 2011). Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2025/110/eng@2025-05-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.