Mbogori & another v Attorney General & 3 others (Civil Case E053 of 2023) [2026] KEMC 299 (KLR)

8th May, 2019 until 16th May, 2022, when they were acquitted under Section 215 of the Criminal Procedure Code, demonstrating that the charges were baseless. 3. The Plaintifis further claimed that, as a result of the alleged false imprisonment and malicious prosecution, they sufiered loss of liberty, anxiety, mental anguish, and injury to their reputation within Laikipia County. They also alleged that they incurred legal expenses amounting to Kshs. 200,000 in defending the criminal case and sustained property damage after soil was allegedly dumped on their land, destroying their fence and gate, resulting in a claimed loss of Kshs. 3,800. Consequently, they sought to hold the Defendants jointly and severally liable for general, special, aggravated and exemplary damages arising from the alleged false imprisonment and malicious prosecution. In view of the foregoing, the Plaintifis prayed for judgment against the Defendants jointly and severally for: a. General, special, aggravated and exemplary damages for false and malicious arrest confinement and malicious prosecution of the Plaintifis herein; b. Special damages of Kshs. 4,000,000/= being the cost and legal representation in the Criminal Case and damages caused to the property belonging to the Plaintifis; and c. Cost of the suit and interest. B. The Plaintifi ’s Case: 4. At the trial, the Plaintifis adopted the witness statement dated 28th April, 2023 by the 1st Plaintifi as their evidence in chief. In it, the Plaintifis essentially reiterated their averments in their Plaint as adverted to hereinabove. They also relied on and produced the documents in their list of documents which included a copy of the judgment in Nanyuki Law Courts in Criminal Case No. 588 of 2019, Republic v Douglas Mutai Mbogori & Dickson Mithamo. C. The Defendants’ Case: 5. The 1st, 2nd and 3rd Defendants filed their statement of Defence dated 17th July, 2023 wherein they generally denied the averments made against them by the Plaintifis. They asserted that if the Plaintifis were ever arrested, detained, and/or prosecuted which they denied, it was their contention that the same were undertaken pursuant to a reasonable and justifiable and/or proble cause and in execution of the statutory duties of the 2nd and 3rd Defendants and as such was lawful and procedural. Accordingly, they outlined their statutory duty as including receiving and acting upon information that an ofience cognizable in law has been or is likely to be committed; investigating, interrogating and pursuing every credible evidence upon a reasonable and probable cause; apprehending and detaining in custody suspected ofienders for the purpose of and incidental to the furtherance of the foregoing statutory duties; and arraigning the suspected ofienders before a court of competent jurisdiction in respect of any ofience alleged to have been committed by that person. 6. The 4th Defendant also filed a statement of defence dated 16th August, 2023 wherein it generally denied the averments made against them by the Plaintifis. Further, the 4th Defendant relied on the defense of legal authority to act, and contended that the National Government is bestowed with the function of protection of the environment and natural resources with a view to establishing a durable and sustainable system of development, including, and in particular the safety of dams. 7. The Defendants thus urged the court to dismiss the suit against them with costs. At the trial, the Defendants did not participate and did not therefore call any witnesses in support of their cases. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/299/eng@2026-07-13 2

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D. Issues For Determination: 8. Having considered the pleadings in the case, the written submissions and the material in support of the case, as well as the legal principles bearing upon this case, the court is of the opinion that the following substantive issue[s] arise for determination: a) Whether the Plaintifis proved the tort of malicious prosecution; b) Whether the Plaintifis proved unlawful arrest and false imprisonment; c) Whether the Plaintifis are entitled to the reliefs sought; d. Who should bear the costs of the suit. E. Analysis & Determination On The Issues: 9. 10. In discerning the lawfulness of the arrest and malicious prosecution, the elements to be proved in an action for malicious prosecution are well settled. In George Masinde Murunga v Attorney-General,1 it was held that a Claimant must establish the following: a. That the prosecution was instituted by the defendant; b. That it terminated in the plaintifi's favour; c. That it was instituted without reasonable and probable cause; and d. That it was actuated by malice. These principles were reafirmed in Mbowa vs. East Mengo District Administration,2 (Sir William Dufius P, Lutta and Mustafa JJA), wherein the court summarized the law as follows: “ The action for damages for malicious prosecution is part of the common law of England...The tort of malicious prosecution is committed where there is no legal reason for instituting criminal proceedings. The purpose of the prosecution should be personal and spite rather than for the public benefit. It originated in the medieval writ of conspiracy which was aimed against combinations to abuse legal procedure, that is, it was aimed at the prevention or restraint of improper legal proceedings...It occurs as a result of the abuse of the minds of judicial authorities whose responsibility is to administer criminal justice. It suggests the existence of malice and the distortion of the truth. Its essential ingredients are: (1) the criminal proceedings must have been instituted by the defendant, that is, he was instrumental in setting the law in motion against the plaintifi and it sufices if he lays an information before a judicial authority who then issues a warrant for the arrest of the plaintifi or a person arrests the plaintifi and takes him before a judicial authority; (2) the defendant must have acted without reasonable or probable cause i.e. there must have been no facts, which on reasonable grounds, the defendant genuinely thought that the criminal proceedings were justified; 1 [1979] KEHC 34 (KLR) 2 [1972] EA 352 https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/299/eng@2026-07-13 3

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11. (3) the defendant must have acted maliciously in that he must have acted, in instituting criminal proceedings, with an improper and wrongful motive, that is, with an intent to use the legal process in question for some other than its legally appointed and appropriate purpose; and (4) the criminal proceedings must have been terminated in the plaintifi’s favour, that is, the plaintifi must show that the proceedings were brought to a legal end and that he has been acquitted of the charge...The plaintifi, in order to succeed, has to prove that the four essentials or requirements of malicious prosecution, as set out above, have been fulfilled and that he has sufiered damage. In other words, the four requirements must “unite” in order to create or establish a cause of action. If the plaintifi does not prove them he would fail in his action. The damage that is claimed is in respect of reputation but other damages might be claimed, for example, damage to property...The damage to the plaintifi results at the stage in the criminal proceedings when the plaintifi is acquitted or, if there is an appeal, when his conviction is quashed or set aside. In other words, the damage results at a stage when the criminal proceedings came to an end in his favour, whether finally or not. The plaintifi could not possibly succeed without proving that the criminal proceedings terminated in his favour, for proving any or all of the first three essentials of malicious prosecution without the fourth which forms part of the cause of action, would not take him very far. He must prove that the court has found him not guilty of the ofience charged...The law in an action for malicious prosecution has been clearly defined and in so far as the ordinary criminal prosecution is concerned the action does not lie until the plaintifi has been acquitted of the charge. In this case the respondent could have brought his action for malicious prosecution until the prosecution ended in his favour. He could not have maintained his action whilst the prosecution was pending nor could he have maintained an action after he had been convicted. His right to bring the action only accrued when he secured his acquittal of the charge on appeal, and he then had the right to bring this action for damages...Time must begin to run as from the date when the plaintifi could first successfully maintain an action. The cause of action is not complete until such a time, and in this case this was only after he was acquitted on appeal.” Notwithstanding the fact that the Defendants did not adduce evidence, the Plaintifis still bear the legal burden of proving each element of their claim on a balance of probabilities under Sections 107–109 of 3 the Evidence Act. In this regard, in Kiema v Kenya Cargo Hauling Services the court held inter alia that: “ That the onus of proof is on he who alleges and where negligence, is alleged, the position is that there is as yet no liability without fault and a plaintifi must prove some acts of negligence against the claim is based on negligence.” 12. 3 In this case, there is no dispute that criminal proceedings were instituted against the Plaintifis. The certified copy of the judgment produced by the Plaintifis confirms that they were charged and tried in Criminal Case No. 588 of 2019. The judgment produced before this court shows that on 16th May, {1991} KLR 464 https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/299/eng@2026-07-13 4

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2022 the trial court acquitted both Plaintifis under Section 215 of the Criminal Procedure Code after finding that the prosecution had failed to prove its case beyond reasonable doubt. 13. However, the fact of acquittal does not, of itself, establish that the prosecution lacked reasonable and probable cause. In Nzoia Sugar Company Ltd v Fungututi,4 the Court of Appeal held that as follows; “ Acquittal per se on a criminal charge is not suficient 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.” 14. On the aspect of the prosecution having been instituted with any reasonable and probable cause, Salmond, a legal scholar in his book Salmond on the Law of Torts defines reasonable and probable cause to mean: “ a genuine belief, based on reasonable grounds, that the proceedings are justified.” 15. The test for whether a case was instituted with a reasonable and probable cause was also laid out by the Court of Appeal in Kagane & Other v The Attorney General & Another,5 where Rudd J held as follows: “ the question as to whether there was reasonable and probable cause for the prosecution is primarily to be judged on the basis of an objective test. That is to say, to constitute reasonable and probable cause, 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 so far as that material is based upon 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 afiord a reasonably strong basis for the prosecution.” 16. In the present case, the Plaintifis relied principally on the judgment of acquittal. However, the criminal judgment merely demonstrates that the prosecution failed to discharge the criminal standard of proof beyond reasonable doubt. It does not automatically establish absence of reasonable and probable cause at the time investigations were undertaken or charges preferred. The Plaintifis did not produce the investigation file, witness statements, police occurrence book extracts or any other evidence demonstrating that the investigating oficers knowingly ignored exculpatory evidence or proceeded in the absence of any factual basis. 17. Further, the Plaintifis alleged that the prosecution was intended to please politicians and cartels within the County Government of Laikipia. However, no evidence whatsoever was tendered to substantiate those allegations. They remained mere pleadings unsupported by evidence. 18. The court also notes a critical issue from the parties sued herein. Article 157 of the Constitution establishes the ofice of the Director of Public Prosecutions and vests in that ofice the exclusive constitutional mandate to institute, undertake and discontinue criminal proceedings. Although the police investigate ofiences and recommend prosecution, the decision whether to charge an accused 4 [1988] KLR 399 5 [1969] EA 643 https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/299/eng@2026-07-13 5

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person rests with the Director of Public Prosecutions, who exercises independent prosecutorial discretion. 19. In the present suit, the Plaintifis sued the Attorney General, the OCS, the DCI and the County Government of Laikipia but did not join the Director of Public Prosecutions. In my considered view, the omission is significant because the gravamen of their complaint is that the decision to charge and prosecute them was malicious. Ordinarily, where the impugned conduct concerns the decision to prosecute, the ofice constitutionally responsible for that decision is a necessary party. 20. While failure to sue the Director of Public Prosecutions is not invariably fatal to every claim for malicious prosecution, particularly where the evidence demonstrates that investigating oficers acted maliciously by misleading or manipulating the prosecutorial process, no such evidence was presented in this case. There is therefore no evidential basis upon which this court can attribute the prosecutorial decision either to the police oficers sued, or to the Attorney General. 21. The court consequently finds that although the prosecution terminated in the Plaintifis' favour, they failed to prove lack of reasonable and probable cause, failed to prove malice and failed to establish legal responsibility on the part of the Defendants for the decision to prosecute them. The Plaintifis bore the burden of proving all the essential ingredients of that tort on a balance of probabilities. Having carefully considered the evidence placed before the court, I am not satisfied that they discharged that burden. 22. Accordingly, I make the following orders: a. The Plaintifis' suit is hereby dismissed; and b. Each party shall bear its own costs of the suit. JUDGMENT SIGNED, DATED AND DELIVERED IN VIRTUAL COURT AT NANYUKI THIS 13TH DAY OF JULY, 2026. HON. DANIEL NGAYO., SENIOR RESIDENT MAGISTRATE. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/299/eng@2026-07-13 6

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