New Kenya Co-operative Creameries Limited v Erick Kamau & 1 other

so arraigned in Court on 29/07/2013 in Chief Magistrate’s Court Criminal Case No. 3345 of 2013 but after a trial that lasted about 2 years, he was acquitted under Section 215 of the Criminal Procedure Code. He pleaded that in consequence of the foregoing, he was injured in his reputation and was put to considerable trouble, anxiety and expense in defending himself and has suffered loss and damage. He then prayed for an award of general damages for malicious prosecution and for unlawful confinement, and also special damages, which he particularized at Kshs 71,580/-, plus costs and interest. 3. The Appellant, in response, filed the Statement of Defence dated 7/04/2016 through Messrs Onyinkwa & Co. Advocates, wherein it denied the allegations made in the Plaint. The Appellant alleged further that the 1st Respondent was under a contractual and legal duty to work and observe company rules and regulations but he however did not work honestly or diligently in discharge of his duties, that about July 2013, the Appellant lost 12 cartons of powder milk out of theft at its Sosiani factory, and internal investigations carried out found the 1st Respondent culpable and as a consequence, the Appellant made a legitimate complaint of theft by servant against the 1st Respondent. The Appellant thus averred that the actions of the 1st Respondent were in breach of the contract of employment entitling the Appellant to summarily dismiss him from employment, that it made a legitimate and merited report of theft by servant against the 1st Respondent on the basis of evidence, and not out of malice 4. The 2nd Respondent, on its part, filed the Statement of Defence dated 18/04/2016, in which it, too, denied the allegations made in the Plaint. The 2nd Respondent then pleaded that on or about 25/07/2013, a complaint was lodged with the police that the 1st Respondent had committed an offence cognizable in law, acting upon the complaint, the police proceeded to carry out investigations which revealed that the 1st Respondent had committed the offence of stealing by servant, and completion of investigations led to his arrest and prosecution. It was averred that all actions the police took were in execution of statutory duties bestowed upon it, and the 1st Respondent’s acquittal does not entitle him to a cause action on malicious prosecution. 5. The case then proceeded to trial in which the 1st Respondent testified for himself, while the Appellant called 4 witnesses. The 1st Respondent had by this time changed Advocates and was now being represented by Messrs Mukabane & Kagunza & Co. Advocates. The 2nd Respondent - the office of the Attorney General - did not call any witness. 6. At the trial, the 1st Respondent (Plaintiff), testifying as PW1, adopted his Witness Statement, and testified that he was a general clerk. He stated that for release of milk, the procedure was that an order was made from the depot to the manager who then dealt with the supervision, and when was so instructed, he would a request from the store. He testified that the code 1006 and 1010 are for dry milk production, and he would see the records. He testified that it was for the company to check the records to confirm, that in this case, they did not check such records, and that the company suspended him before dismissing him yet the case was still pending, and that he was eventually acquitted. He stated that the Investigating Officer did not testify in the criminal case, and that it was alleged that the foreman took the product from him. He also contended that security guards checked the vehicles as they left but they did not also testify. In cross-examination, he agreed that he was found to have a case to answer at the trial Court, and also that he did not produce receipts for the expenses he claimed at the trial Court. He also agreed that the Investigations Report shows that he and one Josephine were interviewed, although he denied that the Statement relied on was his. He stated that he was suspended from employment without being given a hearing, that he did not deal with the requisition, that he is not aware of the 12 cartons that were allegedly lost, and that he released milk to go to the sales depot. In re-examination, he reiterated that he used to supply milk to the sales depot, and it is that department https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2505/eng@2026-02-27 2

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that then distributed it. He also stated that the criminal Court proceedings indicate that the evidence against him was not sufficient. 7. For the defence, the first witness (DW1) was Michael Mukupi. He adopted his Witness Statement and introduced himself as a Relations Manager with the Appellant. He reiterated that the Appellant conducted internal investigations, and stated the case involved 15 people who were disciplined, not because of their tribe nor was there malice, and that when the Appellant lodged the complaint to the police, its role was to avail witnesses and documents to the Investigating Officer. He agreed that the 1st Respondent was eventually acquitted although he pointed out that the 1st Respondent had been earlier in the case been put to his defence. He also agreed that the Investigating Officer did not testify. He stated further that he was the Secretary in the disciplinary case against the 1st Respondent, and that the 1st Respondent admitted that he packed all the cartons mentioned in the alleged theft. In cross-examination, he agreed that the Appellant did not appeal against the 1st Respondent’s acquittal, and also that the 1st Respondent, when he was charged in Court, was replaced in employment with another person. He also stated at the disciplinary proceedings, the 1st Respondent was represented by an Advocate, and that the 1st Respondent was stationed at the Sales department. He also agreed that although he was on duty on the date of the theft, he did not record a Statement. In re-examination, in what sounded like a change in testimony, he stated that the 1st Respondent did not bring an Advocate at the disciplinary proceedings. He then reiterated that the Appellant provided witnesses, documents and exhibits to the Investigating Officer who however did not turn up in the criminal case to testify. According to him, the Appellant played its part. 8. DW2 was Nyathira Muthuma who introduced herself as a Legal Officer at the Appellant. She, too, adopted her Witness Statement. In cross-examination, she agreed that she did not participate in the criminal case but pointed out that the 1st Respondent was found to have a case to answer although the Court eventually found that there was no sufficient evidence to convict. She agreed that while the 1st Respondent was stationed in Eldoret, she was herself based in Nairobi. She, too, stated that 15 members of staff were involved but averred that they were not all from one ethnic community, and she thus refuted the insinuation of tribalism in the matter. She stated further that the Appellant filed a valid complaint over the theft, that the police agreed to charge the accused, that 3 witnesses testified in the criminal trial, and that the 1st Respondent had a co-accused. Regarding the failure to appeal against the acquittal, she stated that the Appellant had no authority to appeal as it was simply a complainant. In re-examination, she, too, agreed that the Investigating Officer did not testify in the criminal case. 9. DW3 was Joseph Odhiambo, who introduced himself as a Security Manager at the Appellant, and adopted his Witness Statement. In cross-examination, he agreed that he, too, is based in Nairobi. He also agreed that milk was produced in form of codes in the factory, and in this matter, the codes were 1006/008, that code 1006 indicates 50 cartons, and that the Appellant was the record keeper. 10. Athis point, it was noted that there were discrepancies and variances in the numbering of codes as testified by DW1 and DW3. As a result, DW1 was recalled for purposes of giving clarifications, which he returned and did. 11. DW4 was Daniel Chesire, who introduced himself as a Salesperson with the Appellant, and also adopted his Witness Statement. He testified that the 12 cartons that the Appellant had loaded were not included in the records. In cross-examination, he stated that although he worked in the depot, he was a driver and he knew nothing about production. He however insisted that 150 cartons were loaded. In cross-examination, he confirmed that some cartons of milk got lost, and he denied that the report made at the police about the loss was false. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2505/eng@2026-02-27 3

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12. 13. As aforesaid, after the hearing, the trial Court entered Judgment in favour of the 1st Respondent (Plaintiff) as set out above. Dissatisfied with the Judgment, the Appellant filed this appeal by way of the Memorandum of Appeal dated 19/04/2022, premised on the following 5 grounds: i. THAT the learned trial Magistrate erred in law and fact by entering the judgement in favour of the respondent as against the Appellant and thereby making the finding that the 1st Respondent proved his case on a balance of probabilities contrary to the evidence tendered therein. ii. THAT the learned trial Magistrate erred in law and fact in making a determination that there was malicious prosecution against 1st Respondent by the Appellant. iii. THAT the learned trial Magistrate erred in law and fact by entering a judgement in favour of the 1st Respondent despite the evidence adduced by the Appellant at the hearing and the submissions by the Appellant thereof. iv. THAT the learned trial Magistrate erred in law and fact by wholly ignoring the appellant’s evidence and thereby arriving at an erroneous decision. v. THAT the learned trial Magistrate erred in law and fact by making an awkward on general damages for malicious prosecution to the 1st Respondent despite the evidence adduced; and which damages are manifestly exclusive. The Appeal was then canvassed by way of written Submissions. The Appellants’ Submissions is dated 22/08/2025, while the 1st Respondent’s is dated 6/10/2025. The 2nd Respondent, the Attorney General, does not however seem to have filed any Submissions. Appellant’s Submissions 14. Counsel for the Appellant faulted the trial Magistrate for holding that the 1st Respondent had proved his claim solely on the basis that the 2nd Respondent did not adduce any evidence, and that by that reason, the 1st Respondent’s case remained uncontroverted. He thus faulted the trial Court for failing to analyze the evidence on record in order to determine whether case had been proven. He cited the case of Mbowa v East Mengo District Administration [1972] EA 352, which he submitted, outlined the grounds that must be established to prove a case of malicious prosecution, and submitted that the trial Court failed to consider whether the same had been proved. He submitted that the role of the Appellant was simply to make a report to the police and it did not take part in the arrest and prosecution of the 1st Respondent. He cited the case of Samson Nderitu v The Attorney General [2010] eKLR. Counsel also pointed out that although the 1st Respondent was eventually acquitted, this was only after being put on his defence, and that the trial Magistrate did not consider whether the prosecution against the 1st Respondent was instituted without reasonable and/or probable cause. He submitted that the Appellant had a reasonable cause to believe that a crime had been committed by the 1st Respondent as it had lost 12 cartons of powder milk which led to an internal investigation which found the 1st Respondent culpable, and as a consequence, made a legitimate complaint of theft to the police, and also availed evidence and witnesses who demonstrated that the Appellant had a valid reason to make the complaint to the police. He also averred that upon completion of investigations, the police found good reason to prefer charges, and prosecute the 1st Respondent. 15. He cited the case of Kagane vs Attorney General, and contended that the fact that the 1st Respondent was put on his defence implies that there was enough factual basis necessitating his prosecution, and the prosecution cannot there fore be termed as without probable cause. He contended further that https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2505/eng@2026-02-27 4

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there was nothing on record to demonstrate that the arrest and prosecution was maliciously driven, and that the trial Magistrate failed to establish whether there was any collusion between the Appellant and police officers so as to infer that there was an element of malice. Counsel contended further that the mere fact that a person had been acquitted of a criminal charge does not necessarily connote malice on the part of the prosecutor. He cited the case of Susan Mutheu Muia vs. Joseph Makau Mutua (2018), and also the case of Stephen Gachau Githaiga & Another vs. Attorney General (2015) Civil Appeal No. 27 of 2014 eKLR. In respect to the general damages award of Kshs 1,000,000/-, he termed the same as excessive, and submitted that the trial Magistrate did not explain the basis for awarding the sum. He submitted that a sum of Kshs 200,000-Kshs 300,000/- would have sufficed in this case. 1st Respondent’s Submissions 16. The 1st Respondent’s Counsel, on his part, submitted that the Appellant’s disciplinary panel refused to look at the records setting how the powder milk had been moved, the applicable codes and the fact that no milk had been lost. He then made further submissions seeking to demonstrate how the Appellant’s investigations were flawed, how the codes for milk alleged to have been lost were wrong, and how the dates alleged were inaccurate, among others. Most of these matters submitted upon by Counsel were however clearly matters for the criminal Court and the Employment and Labour Court, and therefore not helpful in this Appeal. He however pointed out that the 2nd Respondent – the Attorney General – did not call any evidence, and thus there was no explanation before the Court as to what informed the decision to charge the 1st Respondent. He contended that the allegations made against the 1st Respondent were invalid and without justification given that the Appellant was hell bent to get rid of the 1st Respondent on account of his ethnicity, that the 2nd Respondent and the Appellant made a hasty decision to charge the Appellant, and that the decision was made while the Appellant was still proceeding with internal disciplinary mechanism to ascertain whether there was any evidence to warrant dismissal of the 1st Respondent from employment. He pointed that one Daniel Chesire who was alleged to have been the source of the information relied on to charge the 1st Respondent was never called to testify. On the issue of the general damages awarded at Kshs 1,000,000/-, he defended the figure, which he submitted, was correct, and not manifestly excessive. Determination 17. As reiterated in a plethora of cases, this being a first appellate Court, it has the duty to evaluate, reassess and re-analyze the evidence before the trial Court, and draw its own conclusion (see for instance, the case of Kenya Ports Authority vs Kuston (Kenya) Ltd [2009] 2 EA 212. 18. The issues that arise for determination in this Appeal are evidently the following; 19. i. Whether the trial Court erred in finding the Appellant liable for malicious prosecution of the 1st Respondent. ii. Whether the trial Court’s award in general damages at Kshs 1,000,000/- was inordinately high or excessive. In respect to the first issue, the extent of the mandate of an Appellate Court when called upon to review a finding of fact by a trial Court is well-settled. It is that an appellate Court will only interfere with conclusions and findings of a trial Court if the same was not supported by evidence, or was premised https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2505/eng@2026-02-27 5

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on wrong principles of law. In re-affirming this principle, the Court of Appeal, in the case of Mwangi v. Wambugu (1984) KLR 453, held as follows: “ A court of Appeal will not normally interfere with a finding of fact by the trial court unless such finding is based on no evidence or on a misapprehension of the evidence or the Judge is shown demonstrably to have acted on wrong principle in reaching the finding and an appellate court is not bound to accept the trial Judge’s finding of fact if it appears either that he has clearly failed on some material point to take into account of particular circumstances or probabilities material to an estimate of the evidence, or if the impression based on the demeanour of a witness is inconsistent with the evidence in the case generally.” 20. The tort of malicious prosecution has been extensively discussed by our Courts. The ingredients were reiterated by Mativo J (as he then was) in the case of Stephen Gachau Githaiga & Another vs Attorney General [2015] eKLR, in which he held as follows; “ Malicious prosecution is an intentional tort designed to provide redress for losses flowing from an unjustified prosecution. Under the first element of the test for malicious prosecution, the plaintiff must prove that the prosecution at issue was initiated by the defendant. This element identifies the proper target of the suit, as it is only those who were actively instrumental in setting the law in motion that may be held accountable for any dam age that results. The second element of the tort demands evidence that the prosecution terminated in the plaintiff’s favour. This requirement precludes a collateral attack on a conviction properly rendered by a criminal court, and thus avoids conflict between civil and criminal justice. The favourable termination requirement may be satisfied no matter the route by which the proceedings conclude in the plaintiff’s favour, whether it be an acquittal, a discharge at a preliminary hearing, a withdrawal, or a stay. The third element which must be proven by a plaintiff - absence of reasonable and probable cause to commence or continue the prosecution - further delineates the scope of potential plaintiffs. As a matter of policy, if reasonable and probable cause existed at the time the prosecutor commenced or continued the criminal proceeding in question, the proceeding must be taken to have been properly instituted, regardless of the fact that it ultimately terminated in favour of the accused. Finally, the initiation of criminal proceedings in the absence of reasonable and probable grounds does not itself suffice to ground a plaintiff’s case for malicious prosecution, regardless of whether the defendant is a private or public actor. Malicious prosecution, as the label implies, is an intentional tort that requires proof that the defendant’s conduct in setting the criminal process in motion was fuelled by malice. The malice requirement is the key to striking the balance that the tort was designed to maintain: between society’s interest in the effective administration of criminal justice and the need to compensate individuals who have been wrongly prosecuted for a primary purpose other than that of carrying the law into effect.” https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2505/eng@2026-02-27 6

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21. Schofield J had earlier summarized the above principles in the case of Gitau vs East Africa Power & Lightning Co. Ltd (1986) KLR 365, as follows: “ In order for a claim of malicious prosecution to succeed the plaintiff must not only show that he was prosecuted but that he was prosecuted upon the instigation of the defendants and that there existed malice and which malice he must prove.” 22. The Court of Appeal, in the case of Robert Okeri Ombeka v Central Bank of Kenya (2015) eKLR, had also guided as follows: “ 29. Comparative judicial experience in other jurisdictions also shows an emerging legal principle that an acquittal or discharge in a criminal prosecution should not necessarily lead to a cause of action in malicious prosecution law suits. A malicious prosecution plaintiff cannot establish lack of probable cause based on having obtained in an earlier action an acquittal based on insufficiency of the evidence. Successfully defending a prosecution or a law suit does not establish that the suit was brought without probable cause.” 23. The upshot of the foregoing is that the elements of malicious prosecution that the Appellant in this case was required to satisfy before the trial Court were that (i) the prosecution was instigated by the Respondents, (ii) the matter was finalized in the Appellant’s favour, and (iii) the prosecution or its continuance was actuated by malice on the part of the Respondents. 24. On the first ingredient, whether the prosecution of the 1st Respondent was instigated by the Appellant, there is no dispute that indeed it is the Appellant that instigated the prosecution. I say so because it is the Appellant’s agents, who in the course of their duties, lodged the complaint with the police reporting the alleged theft. The second ingredient, whether the prosecution terminated in the 1st Respondent’s favour, is also not in issue since it is not disputed that the 1st Respondent was eventually acquitted in the criminal case. These two ingredients are therefore not in issue, and were thus satisfactorily established. 25. The bone of contention in this matter is on the third and fourth ingredients, that is, whether the prosecution or its continuance was conducted without probable cause, and whether the same was actuated by malice on the part of the Appellant. 26. In this case, it is clear that the trial Magistrate held that the 1st Respondent had proved his case basically on the basis that the 2nd Respondent - the Attorney General - having not adduced any evidence, the 1st Respondent’s case remained uncontroverted. The trial Magistrate did not thus analyze the evidence on record for him to determine whether the case had been proven. 27. Reviewing the evidence before the trial Court on my own, it is clear that the Appellant had, in its defence, averred that its role was simply to make a report to the police, and that it did not participate in the arrest and prosecution of the 1st Respondent. The Appellant also contended that it had a reasonable cause to believe that a crime had been committed by the 1st Respondent as it had lost 12 cartons of powder milk which led to an internal investigation which implicated the 1st Respondent and a second employee as culpable. The Appellant therefore asserted that it lodged a legitimate complaint of theft with the police, and also availed evidence and witnesses who, according to the Appellant, demonstrated that there was a valid reason to make the complaint. It was also urged that upon investigations, the police found good reason to prefer charges against, and prosecute the 1st Respondent. 28. Perusing the record of the trial Court, I am satisfied that indeed, the Appellant presented sufficient support of the above defence, both by oral testimony and documentation, in terms of witness https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2505/eng@2026-02-27 7

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statements, the investigations report and exhibits. The 1st Respondent, in my assessment, did not present anything meaningful to disprove the Appellant’s defence that there was reasonable and probable cause to prefer charges against the Appellant, and that the action of reporting the complaint to the police was not actuated by malice. 29. The notable state of affairs I observe in the trial Court proceedings is that the 1st Respondent’s legal team conducted the case as if it were re-litigating the criminal case and/or the civil case that was filed by the 1st Respondent at the Employment and Labour Court, in which the 1st Respondent is said to have sought compensation for wrongful or unfair dismissal from employment. Even in this Appeal, the same state of affairs was perpetuated by the 1st Respondent’s legal team. In dwelling too much on this line of litigation, the 1st Respondent’s legal team seems to have failed to appreciate that the ingredients to be established, the standard of proof, and/or the threshold to be met in all these three different kind of cases is markedly distinct, and thus lost the opportunity to narrow down on the real issues before the Court, namely, to demonstrate that the prosecution was conducted without probable cause, and that it was actuated by malice. 30. The obligation of proving that the police had no reasonable or probable cause to prefer charges against the 1st Respondent, and that the Appellant’s action of reporting the complaint was actuated by malice lay, at all times, with the 1st Respondent since he is the one who was asserting that fact. Indeed, it is trite law that “he who alleges must prove”. This is the principle of “burden of proof” codified in Section 107 of the Evidence Act as follows: 107 (1) Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. (2) When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.” 31. I agree with the Appellant that the trial Magistrate did not at all carry out any analysis on whether the prosecution against the 1st Respondent was instituted without reasonable or probable cause as alleged by the 1st Respondent. It must be recalled that the mere fact that a person has been acquitted of a criminal charge does not necessarily connote malice on the part of the prosecutor. In my assessment, there was nothing on record to demonstrate that the arrest and prosecution was maliciously driven, or that the 1st Respondent demonstrated the existence of any indication that there was any collusion between the Appellant and police officers so as to infer an element of malice. 32. On my above finding, I am fortified by the decision of the Court of Appeal in James Karuga Kiiru v Joseph Mwamburi & 2 Others [2001] eKLR in which the Court found as follows: “ (B) Malicious Prosecution. To prosecute a person is not prima facie tortious, but 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. In the present case, the appellant has not unfortunately discharged this onus as there is nothing to show that the prosecutor did not act honestly and reasonably. It will be evident that we also think that there is no merit in the final and faintly argued submission that there was no reasonable and probable cause for the prosecution. It may well be that the appellant was innocent all the time, but there is no reason in the absence https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2505/eng@2026-02-27 8

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of necessary evidence for making a police officer liable when he had only done his duty in investigating an offence.” 33. Applying the above principles, and having considered the circumstances under which the prosecution was initiated, I disagree with the trial Magistrate that the 1st Respondent (Plaintiff) demonstrated that the initiation thereof was motivated by malice. There is nothing on record to disprove the Appellant’s contention that it simply reported a genuine report of loss of several cartons of milk from its depot, upon which the police carried out investigations which found that there was reasonable and probable cause to prefer charges against the 1st Respondent, as a result whereof the decision to institute the criminal charges was reached. 34. It is also not in dispute that, in this case, although the 1st Respondent was eventually acquitted, this was only after he had earlier been put on his defence, as the criminal Court had, after closure of the Prosecution case, found that a case to answer had been established against him. I agree with the Appellant’s Counsel that considering the circumstances of this case, it can be safely inferred that the fact that the 1st Respondent was put on his defence implies that there was enough factual basis necessitating his prosecution. The prosecution cannot therefore justifiably be termed as without probable cause. My finding is therefore that the Appellant did not present any material to disprove or discredit this assertion by the Appellant. 35. It therefore follows that among the 4 ingredients of the tort of malicious prosecution, the Appellant proved only two, namely, that the prosecution was instigated by the Appellant, and that the same terminated in his favour. In the absence of proof of the other two ingredients, the suit could not have succeed. 36. Having found that the 1st Respondent’s claim of malicious prosecution was not proven, the second issue, namely, whether the amount awarded in general damages was excessive does not now arise. Final Orders 37. Under the above circumstances, this Appeal succeeds, and I order as follows: i. T he Judgment delivered in Eldoret CMCC No. 206 of 2016 entering Judgment against the Appellant for the tort of malicious prosecution is hereby set aside, and substituted with an order dismissing the suit with costs to the Appellant. ii. The Appellant shall also have the costs of this Appeal. DELIVERED, DATED AND SIGNED AT ELDORET THIS 27TH DAY OF FEBRUARY 2026 ………………..…….. WANANDA JOHN R. ANURO JUDGE Delivered in the presence of: Ms. Ghati for the Appellant Ms. Lubanga for the 1st Respondent N/A for the 2nd Respondent Court Assistant: Brian Kimathi https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2505/eng@2026-02-27 9

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