Pmm v Awm (being Sued As The Next Friend and Mother of Wm Minor) & 1 other

Appellant’s Submissions 4. The appellant relies on the case of Hicks vs Fawkers (1878) 8 OBD and submits that the complainant in the criminal trial did not have reasonable cause to take him to the police. Further, the police did not analyse all the statements from all possible witnesses which automatically shows malice against him. The appellant argues that the investigations carried out by the police did not factor in the witness statement by JNM as they would have shown where he was between 4pm and 8.30pm on the material day. Thus, failing to take into account the said witness statements demonstrates ill will and spite against him leading to the fabricated charges. To support his contentions, the appellant relies on the cases of Phinehas Nyagah vs Gitobu Imanyara [2013] eKLR; Kagane vs Attorney General & Another (1969) EA 643 and Namoni Saisi [2016] KEHC 5698 (KLR). 5. The appellant argues that the trial court disregarded the facts before rendering justice as it closed its eyes on malice clearly exhibited in the evidence produced in court. The appellant further argues that the trial Magistrate failed to consider that he and the respondent had ongoing family issues which led them to a meeting with the chief which was not related with the current matter. Further, there were many contradictions on the statements presented by the witnesses and an outright intention to punish him, which the learned magistrate failed to consider. The appellant submits that he has proved malice in the criminal trial as the prosecution did not prove beyond reasonable doubt, did not find any defence of an alibi as required in law and thus the conviction was bad in law. 6. The appellant submits that the trial magistrate failed to consider the evidence produced by JNM and Samuel Mwangi, his alibi which proves malice on the part of the respondent. To support his contentions, the appellant refers to the cases of Council of Civil Service Unions and Others vs Minister for the Civil Service [1984] 3 All ER 935 and Mary Kanini Muriuki vs The DCIO Imenti North & Attorney General Meru HCCC No. 28 of 2018. 7. Relying on the cases of Miguna vs The Standard Group Ltd & 4 Others (no citation given) and Chrispine Otieno Caleb vs Attorney General [2014] KEHC 8485, the appellant submits that he has been incarcerated for one year and six months, has been in the court for a period of nine years and lost his family thus he ought to be awarded Kshs. 1.5 million as compensation. The 1st Respondent’s Submissions 8. The 1st respondent refers to the decision in Nzoia Sugar Company Ltd vs Fungututi (1988) KLR 399 and submits that the fact that the appellant was acquitted of criminal charges does not necessarily connote malice on her part. The appellant on cross examination testified in the trial court that there was no bad blood between him and her and neither was there bad blood between him and the victim. The appellant failed to tender any evidence to prove that there was a grudge between him and her. Further, the appellant did not present any minutes of meetings held to resolve their issues (if any) and neither did he present a witness to show there was a conflict between him and her which could have influenced the institution of criminal proceedings. 9. The 1st respondent submits that the appellant did not present JNM and Samuel Mwangi before the trial court to corroborate his case on malicious prosecution and neither did he provide any tangible evidence before the court to prove his case. Thus it is evident there was no spite or ill will between him and her that would have resulted to her lodging a complaint against the appellant out of ill will. 10. The 1st respondent relies on the cases of National Oil Corporation vs John Mwangi Kaguenye & 2 Others [2019] eKLR and James Karugu Kiiru vs Joseph Mwamburi & Another [2001] eKLR and submits that the onus of proving that the appellant was maliciously prosecuted lay on the appellant. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3524/eng@2026-03-12 2

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The appellant never produced any evidence of malice, harassment or intimidation or manipulation of the court process so as to seriously deprecate the likelihood that the appellant never got a fair hearing and trial as provided for under Article 50 of the Constitution. 11. The 1st respondent submits that she had a civic/parental duty of care for her child as envisaged under Article 53 of the Constitution. At the trial court, she testified that she rushed the minor to Igegania Hospital whereupon examination of the minor she was advised to report the matter at the nearest police station and upon issuance of the P3 form, took the minor to Gatundu Hospital. The 1st respondent submits that’s he presented all the items that were necessary to conduct the investigations to the police for analysis and the fact that the victim had identified her father as the perpetrator, it created room for the police to conduct investigations against the appellant who was charged before a court of law after finalizing and gathering proper evidence. Relying on the cases of Samson John Nderitu vs The Attorney General (2010) eKLR and Attorney General & 2 Others vs Josephat Maina Karuoro (2018) eKLR, the 1st respondent argues that the appellant did not prove malice, ill will or spite in the trial court. Further, the appellant did not prove that reporting the matter to the proper authorities was actuated by improper motive. Issues for Determination 12. The main issues for Determination are:a. Whether the tort of malicious prosecution was proven to the required standard. b. If yes, whether the appellant is entitled to damages. The Law 13. Being a first Appeal, the court relies on a number of principles as set out in Selle and Another vs Associated Motor Boat Company Ltd & Others [1968] 1EA 123: “ …..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 into account of particular circumstances or probabilities materially to estimate the evidence.” 14. In Gitobu Imanyara & 2 Others vs Attorney General [2016] eKLR the Court of Appeal stated that: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. 15. From the above cases, the appropriate standard of review to be established can be stated in three complementary principles:a. That on first appeal, the Court is under a duty to reconsider and re-evaluate the evidence on record and draw its own conclusions; https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3524/eng@2026-03-12 3

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b. That in reconsidering and re-evaluating the evidence, the first appellate court must bear in mind and give due allowance to the fact that the trial court had the advantage of seeing and hearing the witnesses testify before it; and c. That it is not open to the first appellate court to review the findings of a trial court simply because it would have reached different results if it were hearing the matter for the first time. Whether the Tort of Malicious Prosecution was Proven to the Required Standard 16. 17. The principles that govern a claim founded on malicious prosecution were laid out in the case of Murunga vs Attorney General [1979] KLR, 138 as follows:a. The plaintiff must show that the prosecution was instituted by the defendant, or by someone for whose acts he is responsible; b. The plaintiff must show that the prosecution terminated in his favour; c. The plaintiff must demonstrate that the prosecution was instituted without reasonable and probable cause; d. He must also show that the prosecution was actuated by malice. Similarly in Stephen Gachau Githaiga & Another vs Attorney General [2015] eKLR, Justice Mativo (as he then was) discussed the tort of malicious prosecution 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 damage 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 and 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 fueled 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/2026/3524/eng@2026-03-12 4

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18. Thus, the appellant must satisfy all of the above elements of malicious prosecution in order to succeed in obtaining an award of damages against the respondents. In the present case, it is undisputed that the appellant was arrested, detained and charged by the police acting as agents of the 1st respondent on a charge of incest by male contrary to Section 20(1) of the Sexual Offences Act. The appellant was convicted in Gatundu Senior Principal Magistrate Court SO Case No. 12A of 2016 and the learned trial Magistrate found him guilty and sentenced him to twenty years imprisonment. The appellant lodged an appeal to the High Court at Kiambu vide Criminal Appeal No. 40 of 2019 where the learned Judge quashed the conviction and set the sentence aside. Therefore, the appellant has satisfied the first two elements of the tort of malicious prosecution. 19. The next issue is whether the prosecution was initiated without reasonable and probable cause. The Black’s Law Dictionary (10th Edition) defines reasonable as fair, proper or moderate under the circumstances; sensible. Probable cause was defined in Lawrence Onyango Oduori vs Attorney General & Another [2022] eKLR to mean “ a reasonable ground to suspect that a person has committed or is committing a crime." The term reasonable and probable cause was explained in Kagane vs Attorney General (1969) EA 643 as follows:As regards malice and want of reasonable and probable cause, in the nature of things, a person who is actuated by malice may for that reason be likely to institute a prosecution without reasonable and probable cause. The possibility is provided for in law to some extent in a rather backhanded way by allowing want of reasonable and probable cause to be taken into consideration as being some evidence of malice, but the converse does not apply. There would be too much at risk of injustice if the converse applied since a malicious person may yet have reasonable and probable cause for instituting a prosecution, and so malice is no evidence at all of absence of reasonable and probable cause and must be completely disregarded when considering the question as to whether there was reasonable and probable cause for the prosecution. Reasonable and probable cause is an honest belief in the guilt of the accused based upon a full conviction founded upon reasonable grounds of the existence of a state of circumstances, which assuming them to be true, would reasonably lead an ordinary 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. 20. The court further stated that:The question as to whether there was reasonable and probable cause for the prosecution is primarily to be judged on the basis of objective test. That is to say, to constitute reasonable and probable cause the totality of the material within the knowledge of the prosecutor at the time he instituted the prosecution, whether that material consisted of facts discovered by the prosecutor or information which has come to him or both, must be such as to be capable of satisfying an ordinary reasonable prudent and cautious man to the extent of believing that the accused is probably guilty. If and in so far as that material is based on information, the information must be reasonably credible, such that an ordinary reasonable prudent and cautious man could honestly believe to be substantially true and to afford a reasonably strong basis for the prosecution….If it is shown to the satisfaction of the judge that a reasonable prudent and cautious man would not have been satisfied that there was a proper case to put before the court, then absence of reasonable and probable cause has been established. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3524/eng@2026-03-12 5

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If on the other hand the judge considers that prima facie there was enough to justify a belief in an ordinary reasonable prudent and cautious man that the accused was probably guilty then although this would amount to what I call primary reasonable and probable cause the judge may have to consider the further question as to whether the prosecution himself did not believe in the probable guilt of the accused, and this is obviously a matter which is to be judged by a subjective test. This subjective test should only be applied where there is some evidence that the prosecutor himself did not honestly believe in the truth of the prosecution. 21. I have perused the proceedings of the trial court in the Criminal SO Case No. 12A of 2016 and noted that the minor testified as PW1 and stated that she had come home from school when her father the appellant, asked her to accompany him to pick firewood near the river and in the process he defiled her. the minor told her mother PW2 what had transpired and PW2 reported the matter at Kamawangi police station. The 1st respondent testified as PW2 and she stated that she reached home at 7.30 pm on the material day and found the minor sleeping claiming that she was not feeling well. Upon further inquiring from the minor, she briefed PW2 of what had transpired. The minor was taken to Igegania Hospital but she was not treated since the doctor was not available so she took the minor the following morning to Gatundu District Hospital. Based on those circumstances PW2 reported the matter to the police. From the evidence, PW2 acted on the report of her minor daughter with reasonable and probable cause as any mother would do if informed that her daughter was harmed. The appellant argues that he and PW2 were having marital issues and that they had earlier differed on other issues not related to the current case. In my view, the appellant has not shown any malice in regard to the 1st respondent reporting the incident to the police. From the testimony of PW2 and the defence witnesses that the appellant’s family was living in peace and there was no reason for the minor to fabricate charges against the appellant. Furthermore, the appellate court found that there was no evidence of any grudge between the appellant and the 1st respondent at the time of the incident. As such, it is my considered view that the 1st respondent acted reasonably and with a probable cause in reporting the matter to the police. 22. The appellant has further argued that the police PW4 showed ill will and malice towards him as they ought to have investigated the charges made against him before the arrest and arraignment in court. On perusal of the proceedings, the investigating officer testified that on 6/5/2016, the minor in the presence of her mother went to Kamwangi Police Station and reported that the appellant had sexually assaulted the complainant. The Investigating Officer further testified that he issued her a P3 form and referred the complainant to the hospital. He further stated that PW2 brought him a pant with blood stains and Kshs. 100 that the appellant allegedly gave the minor after sexually assaulting her. The investigating officer further stated that he kept the said exhibits in safe custody. When the 1st respondent brought back the P3 form after taking the minor to Gatundu Hospital PW4 noted that the doctor confirmed the sexual assault and indicated that the hymen was freshly broken. The investigating officer stated that he arrested the appellant and preferred the charges. The investigating officer testified that the 1st respondent had informed him during investigations that she lived with the appellant well prior to the incident. 23. The appellant further argues that the police ignored the evidence of JNM and Samuel Mwangi as his witnesses in the alibi defence. This conduct was an act of ill will and motive on part of the police. On perusal of the record, I have noted that the police carried out their investigations following the report made by the 1st respondent. The police were given all the material they needed as exhibits and further the medical evidence through the P3 form confirmed that the minor had been sexually assaulted. A criminal charge must be investigated in order for the investigating officer to form an opinion that there is sufficient evidence to arraign a suspect before court or otherwise which the investigating officer in https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3524/eng@2026-03-12 6

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this case did. Thus, the appellant has not shown any ill intent on part of the police in the manner they carried out their investigations. On the issue of alibi, the appellate court found that the prosecution ought to have applied to the court to obtain evidence for the purpose of rebutting the alibi of the appellant. The appellate court quashed the conviction of the appellant because it was unsafe. It is trite law that the fact that a party is acquitted of criminal charges does not necessarily establish malice on part of the respondents. It is therefore, my considered view that the appellant failed to show that the police conducted their investigations and arraigned the appellant in court without reasonable and probable cause. 24. The element of malice is the epitome of malicious prosecution. To prove malice on the part of the prosecution, the appellant must provide evidence that demonstrates a malicious intent or an improper motive which has an intention to employ the legal process for some other purpose rather than its appropriate purpose. The purpose of the prosecution should be personal and spite rather than for public interest or benefit. This was stipulated in the case of Philip Odari vs Attorney General & 2 Others [2015] eKLR where the court observed as follows:It is well established that in a claim for damages for malicious prosecution, malice in fact must be proved showing that the person instituting the proceedings was actuated either by spite or ill-will or by indirect or improper motives. 25. However, the appellant has not demonstrated that the said omission was done maliciously. The police investigated the matter and found that there existed a probable and reasonable cause to charge the appellant with the offence. The appellant was given a fair hearing during his trial by lower court. However, the appellate court quashed his conviction by the magistrate in Gatundu Cr (SO) Case No. 12A of 2016 based on an unsafe conviction. However, the appellant has not demonstrated that the police or the trial court were malicious in the roles that each played in the criminal case. The actions of the police in charging the appellant and that the trial court in convicting him were exercising official duties of the respective institutions and were not actuated by malice. 26. I have analyzed the evidence presented to the court below and I am of the considered view, that the court below did not err in its finding that the case of the appellant was not proved on the balance of probabilities. 27. Consequently, I find that this appeal lacks merit and it is hereby dismissed with costs to the 1st respondent. 28. It is hereby so ordered. JUDGMENT DELIVERED VIRTUALLY, DATED AND SIGNED AT THIKA THIS 12TH DAY OF MARCH, 2026. F. MUCHEMI JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3524/eng@2026-03-12 7

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