Daniel Amunabi Akhekabala v The Attorney General & 1 other

damages for unlawfully arresting and confining him and subjecting him to inhuman treatment for a period of 6 days. 3. Both Respondents denied the claim through their respective defences. Ultimately, when the Court considered case, it found merit in the 1st Defendant’s position that the suit was statutorily barred, pursuant to section 3(1) of the Public Authority Limitation of Actions Act, since it was filed more than 12 months after the cause of action arose. It dismissed the suit against the 1st Respondent. 4. It was that decision that displeased the Appellant and he lodged the instant appeal which was heard by way of written submissions. The 1st Respondent did not, however, participate in this appeal. The Appeal: 5. Through an Amended Memorandum of Appeal dated 19th May 2025, the Appellant sought to set aside the decision on the following grounds: 1. The trial Court erred in law and fact in failing to find that the 2 Respondent made a report to the Police Banking Fraud Investigation Unit (BFI) well knowing that the allegations against the Appellant were false and therefore malicious hence the Respondents were liable as claimed/ prayed by the Appellant in the Plaint. 2. The trial Court erred in law and fact in clearly proved that the Police/BFIU acted on the 2 Respondent’s report aforesaid unreasonably, in ignoring the evidence and Submissions on record that unlawfully and maliciously by arresting, confining and prosecuting the Appellant in Criminal Case No. 11 of 2007 without proper investigations as noted by the Criminal Court. 3. The trial Court erred in law and fact in ignoring the fact that the 1" Respondent’s failure to adduce evidence rendered its defence absolutely untenable and the same was for dismissal including the plea of limitation 4. The trial Court erred in law and fact in relying on technicalities rather than doing substantive justice as provided in Article 159 of the Constitution. 5. The trial Court erred in law and fact by disregarding the evidence and Submissions on record and showing bias in reasoning in favour of the Respondents against the Appellant which resulted in injustice. The Submissions 6. The Appellant filed written submissions dated 19th May 2025. He contended that the bank made a false and malicious report to the Banking Fraud Investigation Unit (BFIU) and in both the criminal and civil trials, the Respondents failed to adduce cogent evidence to prove the allegations. 7. Specifically, the Appellant argued that there was no believable evidence to prove that he exclusively initiated or facilitated the transfer of money from the bank accounts of Caroline Jemutai Mutunkei, Milly Vugusta Kivumbi, and Faith Muthoni Ngatia. Furthermore, there was no evidence that he had the necessary access to the 2nd Respondent’s computer system to undertake the questionable transactions, or that his superiors did not participate in or approve the transactions. The Appellant maintained that the consequential action of arresting and charging him was therefore false and malicious. 8. In addressing the grounds of appeal, the Appellant argued that the trial Court had misconceived and underrated the burden of proof placed on the Respondents. He stated that the failure of the https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/652/eng@2026-01-29 2

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Respondents to produce evidence justifying their actions proved that the evidence did not exist before the actions were taken. It was his position that the trial Court ignored the evidence on record, relied on assumptions and technicalities of law, and incorrectly construed the Appellant’s concession to an interlocutory application as proof of the 1st Defendant’s Defence. 9. He maintained that his right to a fair trial under Article 50 of the Constitution was breached, and the trial Court had sanctioned the Respondent’s unlawful actions. He urged this Court to grant the appeal as prayed in the Amended Memorandum of Appeal. The 2nd Respondent’s case: 10. The 2nd Respondent challenged the appeal through written submissions dated 23rd July 2025. Its primary argument was that the suit was correctly found to be time-barred under Section 3(1) of the Public Authorities Limitation Act. It submitted that the said Act required the Appellant to institute the claim against the 1st Respondent within 12 months. 11. The 2nd Respondent pointed out that the suit was filed 1 year, 3 months, 2 weeks, and 6 days after the cause of action accrued. To define when the cause of action accrued, it drew support relied on the case of Jacob Juma & Another -vs- Commissioner of Police & Another [2013] eKLR, which established that the cause of action for malicious prosecution begins upon the termination of criminal proceedings in the plaintiff’s favour. It argued that since the suit against the 1st Respondent was time-barred, the entire claim, including against the 2nd Respondent, was incompetent. 12. Further to the foregoing, the 2nd Respondent contended that the Appellant could not seek an extension of time under Section 27 of the Limitation of Actions Act. It cited the Court of Appeal’s decision in Mary Osundwa -vs- Sugar Company Limited [2002] eKLR, to assert the position that the provision only applies to torts such as negligence or nuisance that result in personal injuries, a category that did not include malicious prosecution. 13. On the question of liability, the 2nd Respondent argued it was not liable for malicious prosecution. It asserted that as the Appellant’s employer, it had made a legitimate report regarding suspected fraudulent transactions to the Banking Fraud Investigation Unit (BFIU). It maintained that the police had the sole duty to investigate and decide to prosecute. To that end, it found support in the case of Gicharu -vs- Safaricom Limited & 3 others [2024] KEELRC 2598 (KLR), where it was observed that that an employer cannot be faulted for escalating a matter to the police. It was its position that the above case affirmed that an acquittal, in itself, is not sufficient proof of malice; spite or ill-will must be proven. It was its case that the Appellant provided no evidence that the 2nd Respondent’s report was false or malicious. 14. Finally, the 2nd Respondent argued that the Appellant’s reliance on Article 159(2)(d) of the Constitution to excuse the delay was misplaced. It submitted that a statutory limitation period is a mandatory jurisdictional prerequisite, not a mere procedural technicality. It referred to the Supreme Court case of Zachariah Okoth Obado -vs- Edward Akong’o Oyugi & 2 others [2014] eKLR, which warned that Article 159 is not a panacea for all procedural shortfalls and must be applied on a case-by-case basis. 15. It concluded by praying for the appeal to be dismissed with costs and for the trial Court’s judgment to be upheld. Analysis: 16. Having carefully reproduced and appreciated the parties’ respective cases, the issues that arise for determination are as follows: - https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/652/eng@2026-01-29 3

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17. i. Whether the suit against the 1st Respondent was statutorily time-barred by Section 3(1) of the Public Authorities Limitation Act. ii. Whether the suit against the 2nd Respondent is competent, and if so, the merits thereof. This Court’s role as a first appellate court is settled. In Selle -vs- Associated Motor Boat Co. [1968] EA 123, the Court of Appeal for East Africa observed thus: …. An appeal to this court from a trial by the High Court is by way of retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular this court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally.” 18. In the case of Susan Munyi -vs- Keshar Shiani [2013] eKLR the Court of Appeal observed thus; As a first appellate court our duty of course is to approach the whole of the evidence on record from a fresh perspective and with an open mind. We are to analyze, evaluate, assess, weigh, interrogate and scrutinize all of the evidence and arrive at our own independent conclusions. 19. The Court will now deal with the issues in seriatim. Whether the suit against the 1st Respondent was statutorily time-barred by Section 3(1) of the Public Authorities Limitation Act: 20. As a matter of course, the preliminary issues of limitation will go first, since they are jurisdictional. The Appellant’s suit against the 1st Respondent was for unlawful arrest and confinement. The 1st Respondent, being the police, is unequivocally a public authority. Therefore, the Public Authorities Limitation Act (hereinafter referred to as ‘the PALA’) applied to action against it. 21. Section 2 of the PALA, being the Interpretational provision defines proceedings as follows: “ proceedings” means civil proceedings in the High Court or a subordinate court. (2) For the purposes of this Act— (a) 22. proceedings against the Government includes proceedings against the Attorney-General or any Government department or any public officer as such; Section 3(1) of the PALA limits proceedings against the Government in the following manner; 3. Limitation of proceedings (1) No proceedings founded on tort shall be brought against the Government or a local authority after the end of twelve months from the date on which the cause of action accrued. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/652/eng@2026-01-29 4

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23. The cause of action for malicious prosecution and related torts like false imprisonment accrues upon the termination of the prosecution in the Appellant’s favour, that is, the date of his acquittal. The 2nd Respondent submitted, and the Appellant did not factually dispute, that the suit was filed 1 year, 3 months, 2 weeks, and 6 days after this accrual, a period outside the 12-month statutory limit. The Appellant’s counter-argument is that the time limit is a technicality that should be overlooked in favour of substantive justice under Article 159 of the Constitution. 24. Numerous other authorities have settled the position that statutory limitation periods are not mere procedural technicalities. They are substantive provisions of law that confer jurisdiction. A Court has no jurisdiction to hear a suit filed out of time, and Article 159 cannot be used to cure such a fundamental, jurisdictional defect. 25. In Divecon -vs- Samani [1995-1998] 1 EA 48 the Court observed thus; No one shall have the right to power to bring after the end of six years from the date on which a cause of action accrued, an action founded on contract. The corollary to this is that no court may or shall have the right or power to entertain what cannot be done namely, an action that is brought in contract six years after the cause of action arose or any application to extend such time for the bringing of the action. A perusal of Part III shows that its provisions do not apply to actions based on contract. 26. Further, in Beatrice Kahai Adagala -vs- Postal Corporation of Kenya [2015] eKLR Court of Appeal held as follows: Much as we sympathize with the appellant if that is true, we cannot help her as the law ties our hands. Section 90 of the Employment Act 2007 which we have quoted verbatim herein above, is in mandatory terms. A claim based on a contract of employment must be filed within 3 years. As this Court stated in the case of Divecon Limited -vs- Samani [1995-1998] 1 EA P.48, a decision relied upon by Radido, J. in Josephat Ndirangu - vs – Henkel Chemicals (EA) Limited, [2013] eKLR, the limitation period is never extended in matters based on contract. The period can only be extended in claims founded on tort and only when the applicant satisfies the requirements of Sections 27 and 28 of the Limitation of Actions Act. 27. More recently, the Court of Appeal in Bosire Ogero -vs- Royal Media Services Ltd [2015] eKLR reiterated the principle that if a suit is time-barred, the Court’s jurisdiction is ousted, and it cannot grant any remedy. It was observed; … The Law of Limitation of actions is intended to bar plaintiffs from instituting claims that are stale and (is) aimed at protecting defendants against unreasonable delay in bringing of suits against them. The issue of limitation goes to the jurisdiction of the court to entertain claims and therefore if a matter is statute barred, the court has no jurisdiction to entertain the same. 28. In Gathoni -vs- Kenya Co-operative Creameries Ltd (1982) KLR 104, the Court of Appeal held that the law of limitation is intended to protect defendants against stale claims. The learned judges went further and observed that a plaintiff who is shut out by the statute has no one to blame but himself and that the court cannot assist a party who has gone to sleep on his rights. 29. In the premises, the trial Court was correct in finding that the suit against the 1st Respondent was statutorily time-barred under Section 3(1) of PALA. Article 159 of the constitution could not revive the claim. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/652/eng@2026-01-29 5

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Whether the suit against the 2nd Respondent is competent, and if so the merits thereof: 30. The 2nd Respondent argued that the bar against the 1st Respondent rendered the entire suit incompetent. Equity Bank (K) Limited, is a private commercial entity. It is not a public authority. As such, the limitation period for claims against it is governed by the Limitation of Actions Act (hereinafter referred to as ‘the LAA’) and not the PALA. 31. The claim for malicious prosecution is a tort. Under Section 4(2) of the LAA, the limitation period for actions founded on tort is three years from the date the cause of action accrued. It provides as follows; 4. Actions of contract and tort and certain other actions (2) An action founded on tort may not be brought after the end of three years from the date on which the cause of action accrued: 32. The Appellant filed the suit 1 year, 3 months, 2 weeks, and 6 days after accrual. This is well within the three-year period prescribed by the LAA for the claim against the 2nd Respondent. Therefore, the statutory bar against the 1st Respondent has no effect on the competence of the suit against the 2nd Respondent. The claims are distinct and governed by different limitation statutes. 33. With the foregoing, the Court now turns to the merits of the claim. 34. To succeed in a claim for malicious prosecution, the Appellant must prove four elements on a balance of probabilities. In the case of G.B.M. Kariuki v Attorney General [2016] eKLR the Court reiterated the following elements: i. The criminal proceedings were instituted by the Respondent, ii. The proceedings terminated in the Appellant’s favour, iii. The proceedings were instituted without reasonable and probable cause, iv. The proceedings were instituted with malice. 35. In this course, the second element is satisfied since the Appellant was acquitted. 36. The 2nd Respondent’s case is that it merely made a legitimate report as an employer to the police and it is the police who exercised their independent discretion to investigate and prosecute. Based on the evidence of Winfred Kyalo, it is the 2nd Respondent that reported the matter to The Banking Fraud Investigation Unit [BFIU]. It, therefore, actively set the law in motion by lodging the complaint and reporting the specific findings to the BFIU. 37. The Appellant argued the report was false and, therefore, malicious. In Hicks -vs- Faulkner 1878 8 QBD 167 171 the English Court discussed ‘reasonable and probable cause’ as follows; …. an honest belief in the guilt of the accused based upon a full conviction, founded on reasonable grounds, of the existence of a state of circumstances, which assuming them to be true, would reasonably lead to any ordinarily prudent and cautious man, placed in the position of the accuser, to the conclusion that the person charged was probably guilty of the crime imputed 38. The burden of proof rested on the Appellant. He had to adduce evidence to show that when the Bank made the report, it did so with malice, spite, ill-will, or a reckless disregard for the truth and knew there was no reasonable or probable cause for the report. As defined in the foregoing authority, reasonable https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/652/eng@2026-01-29 6

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and probable cause is an honest belief in the guilt of the accused based on reasonable grounds that would lead an ordinary, prudent and cautious man to the same conclusion. The 2nd Respondent’s belief was not a random accusation. It was based on specific, objective evidence found before reporting the matter. The evidence of Kennedy Kyalo Kingoo, a prosecution witness, justify reasonable and probable cause. His evidence made the following conclusions. i. A financial loss was discovered from irregular internal transfers; ii. The bank’s system could trace who performed the transfers; iii. The system revealed that the transactions had been done by the Appellant, using his specific user access code (DA01076) and iv. the transfers were confirmed not to have been authorized. 39. The Appellant’s submissions focus on the Respondents’ failure to prove his guilt in the criminal and civil trials. However, in malicious prosecution suit, the Appellant had the burden to prove the Bank’s malice. 40. From the foregoing analysis, the Appellant has not pointed to any specific evidence of malice, other than asserting the report was false, an assertion that is simplistic since it is based on his eventual acquittal. Such assertion is insufficient. There is no demonstration that the legal process was used for a purpose other than bringing the Appellant to justice. The Court of Appeal in James Karuga Kiiru v Joseph Mwamburi & 3 Others, Civil Appeal No. 171 of 2000, affirmed the foregoing by stating thus: … The plaintiff must prove that the prosecution was instituted without reasonable and probable cause and with malice. The burden of proof is on the plaintiff. 41. In Nzoia Sugar Company Ltd -vs- Fungututi [1988] KLR 399, the Court of Appeal held that an acquittal, on its own, is not sufficient proof of a lack of reasonable and probable cause. They observed; … But in my opinion, the case of malicious prosecution must founder on the absence of proof of malice or ill-will. The only reason why the respondent claimed he was maliciously prosecuted, was because the prosecution terminated in his acquittal. As he put it in evidence: I was acquitted under section 210 of the Criminal Procedure Code and in view of this, I am claiming damages from the defendant company because since my acquittal, I have not been employed because I have been treated as a thief as a result of this case.” 42. Subsequently, the Learned Judges discussed the subject as follows; … It is trite learning that acquittal, per se, on a criminal case charge is not sufficient basis to ground a suit for malicious prosecution. Spite or ill will must be proved against the prosecutor. The mental element of ill-will or improper motive cannot be found in an artificial person like the appellant. But there must be evidence of spite in one of its servants that can be attributed to the Company. The respondent gave no evidence from which it can be reasonably inferred that the Security Officer made this report to the police on account of hatred or spite that he had for him. 43. In the premises, the Appellant failed to discharge the burden of proof. He did not provide evidence of malice or lack of reasonable and probable cause on the part of the 2nd Respondent. The Bank acted as a reasonable employer by reporting suspected fraud. The subsequent decision to prosecute lay with the police and his acquittal did not automatically prove that the prosecution was malicious. Therefore, the Appellant failed to prove the tort of malicious prosecution against the Bank. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/652/eng@2026-01-29 7

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Disposition: 44. With the foregoing findings and conclusions, the following final orders hereby issue: (a) The trial Court’s finding that the suit against the 1st Respondent is statutorily time-barred by Section 3(1) of the Public Authorities Limitation Act is upheld. (b) The trial Court’s implied finding that the suit against the 2nd Respondent was time-barred is set aside. The suit against the 2nd Respondent was filed within the three-year limitation period prescribed by the Limitation of Actions Act. (c) Notwithstanding the finding in (2) above, the appeal against the 2nd Respondent fails on its merits. Consequently, the trial Court’s final order dismissing the Appellant’s suit is upheld. (d) Since the appeal has partially succeeded to the extent that the Appellant’s claim against the 2nd Respondent was not time-barred, each party shall bear its own costs. Orders accordingly. DELIVERED, DATED AND SIGNED AT NAIROBI THIS 29TH DAY OF JANUARY,2026. A. C. MRIMA JUDGE Judgment virtually delivered in the presence of: Mr Isindi, Learned Counsel for the Appellant. Michael/Amina – Court Assistants. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/652/eng@2026-01-29 8

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