Saumu Katana v Alfred Sifa Dena & Attorney General
The bottom line
#A Kilifi court awarded a woman Kshs 1 million after finding her criminal prosecution was malicious, confirming that withdrawn charges can count as vindication.
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 1st defendant made a report to the police against the plaintiff on allegations of malicious damage to property
- 2.Whether the plaintiff was arrested, detained and charged with a criminal case
- 3.Whether the charges were terminated in favor of the plaintiff
- 4.Whether the charges were malicious causing the plaintiff to suffer loss and damage
- 5.Whether the defendants are liable to pay damages and costs
Key legal issues
#Whether withdrawal under section 87(a) CPC constitutes termination in the plaintiff's favour
Yes - three years after withdrawal no fresh charges were presented, so the withdrawal was a determination in favour of the plaintiff.
The court acknowledged the defence's point that section 87(a) permits re-arrest and fresh charges, but noted that three years had passed with no charges presented again. Relying on Githaiga and Mbogo, it held the withdrawal was a favourable termination for purposes of the tort.
Whether the prosecution was instituted without reasonable and probable cause and with malice
Yes - the 1st defendant concealed the pending land dispute from police and the plaintiff was never given an opportunity to record a statement; the investigating officer failed in his duties.
The court found the 1st defendant reported to police while aware of the pending land case but did not disclose it. The plaintiff was denied an opportunity to record a statement, the investigating officer never visited the scene or appreciated the pending civil dispute, and the Attorney General called no witness to justify the charge. Malice and absence of probable cause were established.
Whether attempted out-of-court settlement amounts to admission of guilt
No - settlement negotiations are on a without prejudice basis and cannot be an admission of guilt or liability.
Rejecting the defence submission, the court held that any attempt to settle or seek alternative justice resolution cannot be an admission of guilt; failed negotiations are not taken into evidence and only a concluded settlement forms part of the court record.
Whether special damages of Kshs 100,000/= was proved
No - the figure was pleaded without breakdown and no proof was given in evidence; the claim was disallowed.
Special damages must be specifically pleaded and strictly proved. The plaint gave a figure with no breakdown and no documentary proof was produced at trial, so the claim failed.
Legal principles established
#- A plaintiff in malicious prosecution must prove four essentials: institution by the defendant, absence of reasonable and probable cause, malice, and termination in the plaintiff's favour.
- A withdrawal of charges under section 87(a) of the Criminal Procedure Code, where no fresh charges are subsequently instituted, amounts to a termination of proceedings in favour of the plaintiff.
Court orders
#- 1.Liability at 100% against the defendants jointly and severally
- 2.General damages of Kshs 1,000,000/= awarded to the plaintiff
- 3.Plaintiff to have costs of the suit and interest
- 4.Right of appeal of 30 days
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Original civil jurisdiction of the Chief Magistrate's Court in tort (malicious prosecution); no specific constitutional/statutory provision invoked
Relief refused
#Special damages of Kshs 100,000/=
Figure pleaded with no breakdown and no proof in evidence
Costs
The plaintiff will have costs of the suit and interest.
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.
1) Liability at 100% against the defendants jointly and severally. 2) General damages …………………………………………1,000,000/= The plaintiff will have costs of the suit and interest.
To date, three years later, no charges have ever been presented again. Thus, the withdrawal as held in the two cases is a determination in favour of the plaintiff.
Any attempt to settle or seek alternative justice resolution cannot be an admission of guilt or liability.
When the plaintiff was arrested, she was never given an opportunity to record a statement. This would have enabled her to lay bare the nature of the dispute. The investigating officer failed in his duties.
On a balance of probability, the court is satisfied the plaintiff has established liability against the defendants jointly and severally. The prosecution instituted against her is malicious.
Issues in the judgment
#PW1 and PW2 statements are near-identical, with PW2 describing herself as 'the Plaintiff' and stating PW1's workplace as her own
Plaint date given differently in submissions
Judgment dated 6th October 2026 though suit number is of 2024 and events of 2018-2023
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Saumu Katana v Alfred Sifa Dena & Attorney General", Case Analysis (2026). Civil Suit No E236 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/1005/eng@2026-10-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.