Kenya Power and Lighting Company Limited v Erick Owuor Odhiambo & 1 other

information allegedly led to the arrest and prosecution of the 1st Respondent before the Principal Magistrate at Winam. 3. The 1st Respondent was subsequently arraigned before the court in Winam PMCRC No. 486 of 2018 and charged with the offence of unauthorized disconnection of electric power contrary to Section 63(1) (d) of the Energy Act, No. 12 of 2006. He contended that the arrest and prosecution were actuated by malice and lacked reasonable cause. 4. The 1st Respondent was eventually acquitted under Section 210 of the Criminal Procedure Code. 5. Following his acquittal in the criminal case, the 1st Respondent issued a statutory notice to the 2nd Respondent dated 30th March 2020 and thereafter sued in the lower court, arguing that he was forced to endure many days of court attendance without lawful cause, thereby suffering loss, humiliation, and damage to his reputation. 6. The Appellant filed a defence dated 26th May 2020 denying the allegations and averring that at no time did its employees maliciously or falsely report the 1st Respondent to the police. Proceedings Before the Trial Court 7. The 1st Respondent (PW1) testified on 19th May 2021, adopting his witness statements dated 5th and 7th May 2020 as evidence in chief. He confirmed issuance of a statutory notice to the Attorney General dated 30th March 2020 and produced copies of the criminal proceedings and ruling in Winam PMCRC No. 486 of 2018 as Plaintiff’s Exhibits 3 and 4. He stated that he was arrested for an offence he did not commit and sought damages for his unlawful arrest, confinement, and malicious prosecution. 8. On cross-examination, PW1 stated that he was not an employee of Kenya Power. He explained that two individuals came and identified themselves as Kenya Power officers before arresting him. He was taken to Kondele Police Station and later remanded at Kodiaga G.K. Prison for seven days. He added that his reputation was tarnished and he could not secure employment due to the arrest. 9. The Appellant called one witness, DW1 Zachary Ombati, Chief Security Officer at KPLC, who testified on 17th November 2021. He stated that a resident of Renja Estate had made a report on 28th July 2018 regarding people illegally disconnecting power and demanding bribes for reconnection. On 29th July 2018, he and his team rushed to the scene and allegedly found the 1st Respondent on top of an electric pole. He was photographed and later arrested by police. DW1 produced the photographs as Defence Exhibit 1 and maintained that the report and arrest were justified. 10. The trial court delivered its judgment on 11th February 2022, finding in favour of the 1st Respondent and awarding him Kshs. 800,000/= as general damages, plus costs and interest. The Appeal 11. Aggrieved by that decision, the Appellant filed the present appeal vide a Memorandum of Appeal dated 23rd February 2022, raising, in summary, the following grounds: i. The learned trial magistrate erred in finding the Appellant 100% liable without any evidential basis. ii. The trial magistrate erred in law and fact by relying on irrelevant matters and ignoring the Appellant’s evidence and submissions. iii. The 1st Respondent’s case was not proved on a balance of probabilities. iv. The award of Kshs. 800,000/= was inordinately high, unrealistic, and unjustified. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16513/eng@2025-10-23 2

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12. Based on the above grounds, the Appellant prayed that the decision of the trial court be set aside, the 1st Respondent’s suit be dismissed, and costs of both courts be awarded to the Appellant. 13. The appeal was canvassed by way of written submissions. Both the Appellant and the 1st Respondent filed their submissions. There were no submissions on record for the 2nd Respondent as at the time of writing this judgment. Appellant’s Submissions 14. The Appellant submitted that the burden of proof in civil cases lies on the party alleging a fact, as provided under Section 107 of the Evidence Act. It was argued on behalf of the Appellant that the 1st Respondent failed to prove all elements of malicious prosecution as outlined in Mbowa v East Mengo District Administration (1972) EA 352. 15. It was further submitted that once a complaint is made to the police, the decision whether to prosecute rests solely with the police and the Office of the Director of Public Prosecutions. Reliance was placed on Samson John Nderitu v Attorney General [2010] eKLR. The Appellant contended that it merely reported suspicious activity and had no control over the prosecution process. 14. The Appellant argued that its officers had reasonable cause to make the report since the 1st Respondent was found on an electricity pole, and therefore the criminal proceedings were justified. It was also contended that the damages awarded were excessive and unsupported by evidence. Respondent’s Submissions 16. The 1st Respondent supported the trial court’s decision and equally relied on Mbowa v East Mengo District Administration (supra), as well as the case of Christine Otieno Caleb v Attorney General [2014] eKLR to submit that the trial court properly found in his favour, having proved all four elements of malicious prosecution. 17. He emphasized that the crucial witnesses allegedly present at the scene were never called to testify in the criminal case, and the photographs allegedly taken were never produced in evidence. The trial court therefore correctly found that the prosecution lacked probable cause. 18. The Respondent urged the Court to uphold the award of damages, relying on Stephen Gachau Githaiga & Another v Attorney General [2015] eKLR, which held that damages for malicious prosecution must compensate for loss of liberty, humiliation, and injury to reputation. Analysis and Determination 19. This being a first appeal, this Court is obligated to re-evaluate the evidence on record and reach its own independent conclusion, bearing in mind that it neither saw nor heard the witnesses testify. See the Court of Appeal decision in Abok James Odera t/a A.J. Odera & Associates v John Patrick Machira t/a Machira & Co. Advocates [2013] KECA 208 (KLR) where the Court stated that: “ This being a first appeal, we are reminded of our primary role as a first appellate court namely, to re-evaluate, re-assess and reanalyse the extracts on the record and then determine whether the conclusions reached by the learned trial Judge are to stand or not and give reasons either way.” 20. Having considered the pleadings, proceedings, grounds of appeal, and rival submissions, the following issues arise for determination: https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16513/eng@2025-10-23 3

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i. Whether the ingredients of the tort of malicious prosecution were proved. ii. Whether the award of damages was excessive. Whether the ingredients of malicious prosecution were proved 22. The essential elements of malicious prosecution are well settled in Mbowa v East Mengo District Administration (1972) EA 352 and George Masinde Murunga v Attorney General [1979] eKLR, namely: a. The prosecution must have been instituted by the Defendant. b. The prosecution must have terminated in the Plaintiff’s favour. c. The prosecution must have been instituted without reasonable or probable cause. d. The prosecution must have been actuated by malice. 21. In the present case, it is not disputed that the prosecution was initiated following a complaint by the Appellant’s officers, and that the criminal proceedings terminated in the 1st Respondent’s favour upon acquittal under Section 210 of the Criminal Procedure Code. The question, therefore, is whether the prosecution lacked reasonable and probable cause and whether it was actuated by malice. 22. In Stephen Gachau Githaiga & Another v Attorney General [2015] eKLR, the Court defined “reasonable and probable cause” as the existence of facts which, on reasonable grounds, the Defendant genuinely thought that the criminal proceedings were justified. 23. The evidence on record shows that the Appellant’s officer received reports from members of the public regarding illegal disconnections and, upon visiting the scene, allegedly found the 1st Respondent on an electricity pole. This report was made to the police, who conducted investigations and decided to charge the 1st Respondent. 24. The criminal court acquitted the 1st Respondent for failure of the prosecution to call essential witnesses and produce key exhibits. The acquittal under Section 210 of the Criminal Procedure Code does not automatically imply malice or absence of reasonable cause on the part of the complainant. 25. In James Kiiru v Joseph Mwamburi & 2 Others [2001] eKLR, the Court of Appeal held that: “ To prosecute a person is not prima facie tortious; to do so dishonestly or unreasonably is. Malicious prosecution thus differs from wrongful arrest and detention in that the onus of proving that the prosecutor did not act honestly or reasonably lies on the person prosecuted.” 26. The 1st Respondent produced no evidence to demonstrate that the Appellant acted dishonestly or out of improper motive. From the evidence produced before the trial court, I note that the Appellant’s Officers acted on a report from the members of the public concerning electricity vandalism, a matter of great public concern. 27. From the above, it is clear that the report to the police was grounded on a genuine complaint regarding electricity tampering — a matter of public safety and statutory concern. 28. I find, therefore, that there was reasonable and probable cause for the Appellant’s complaint, and no malice was proved. The trial magistrate erred in concluding otherwise. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16513/eng@2025-10-23 4

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Whether the award of general damages was excessive 29. Having found that the tort of malicious prosecution was not established, the question of damages does not arise. Even so, an award of Kshs. 800,000/= would, in my view, have been excessive in the circumstances. Had the Court found the Appellant liable, I would have awarded a sum of Kshs. 250,000/- as was in the case of Silvia Kambura v George Kathurima Japhet & 2 others [2021] eKLR, where a similar award was made by Muriithi J as damages for malicious prosecution. Disposition 30. In the result, I find that the appeal has merit and is hereby allowed. 31. The judgment and decree of the Senior Principal Magistrate in Winam SPMCC No. 74 of 2020 are hereby set aside and substituted with an order dismissing the 1st Respondent’s suit in its entirety. 32. Each party shall bear its own costs. 33. It is so ordered. SIGNED, DATED, and DELIVERED IN VIRTUAL COURT THIS 23RD OCTOBER 2025 ADO MOSES JUDGE In the presence of: C/A – Moses …………..,,,,,,,,for the Applellant ……….…..... for the Respondents https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16513/eng@2025-10-23 5

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