Saumu Katana v Alfred Sifa Dena & Attorney General

2. THAT On or about the 20th May 2018, I was arrested by the police from Kijipwa Police station on allegations of causing damage to the 1st Defendant's property. 3. THAT I was subsequently charged with the offense of Malicious Damage to property in SHANZU CRIMINAL CASE NO 722/2018-REPUBLIC VS SAUMU KATANA MUNGERA. 4. THAT the purported property alleged to have been destroyed was a makeshift toilet that had been put up by my mother, KAHASO MWAROME CHIBO on our family property. 5. THAT I was arraigned in Court on 21st May 2018 where I pleaded not guilty to the charges of malicious damage to property. 6. THAT as at the time of my arrest, no police officer had visited the alleged scene of incident confirm their alleged destruction to property and conduct their independent investigations. 7. THAT the police Officer ONLY visited the scene of the alleged incident ONE WEEK AFTER my arrest and arraignment in Court. Page 2 of 68

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8. THAT no evidence of any nature was taken from the scene of the incident. 9. THAT I was not even at home on the alleged date of the incident as I was at my place of work at EPZ Kanamai. 14. 10. THAT this issue arose out of spite due to my mother filing a suit against the 1st Defendant at the Malindi Environment and Land Court, being ELC NO 76 OF 2018-KAHASO MWAROME CHIBO VS KATANA RIBA KAI ALFRED SIFA DENA AND FLORENCE TABU BIRYA. (now known as KILIFI MC.ELC NO 74 OF 2022) 11. THAT on several dates when the matter came up for Hearing, both the 1st Defendant as the complainant and the Investigating officer failed to attend Court and/or avail the police file. 12. The criminal proceedings against me were withdrawn on the 12TH June 2023 after the 1st Defendant and the Investigating Officer failed to appear in Court during the Hearing and present the police file and the witnesses. Page 3 of 68

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13. THAT my arrest and institution of the criminal proceedings in SHANZU CRIMINAL CASE NO 722/2018-REPUBLIC VS SAUMU KATANA MUNGERA were malicious, in bad faith, baseless and without just and probable cause. PARTICULARS OF MALICE ON THE 1ST DEFENDANT i) Deliberately making false and malicious allegations against the me knowing the same to be false. j) Making a false and malicious report to the police. k) Causing my arrest without ascertaining the truth and without proper investigation. 1) Causing me to be charged and arraigned in Court over malicious allegations. m) Conspiring with the police to have the me arrested. n) Causing and subjecting me to baseless criminal proceedings. o) Deliberately failing to attend Court on multiple occasions as the complainant. p) Failing to avail his witnesses in Court for the trial of the criminal case. PARTICULARS OF MALICE ON THE 2ND DEFENDANT e) Arresting and detaining the Plaintiff on false allegations. f) Failing to conduct proper investigations as to the complaint and false allegations by the 1st Defendant before my arrest. g) Charging Page 4 of 68

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the Plaintiff on false, baseless and fictitious allegations without having conducted any investigations. h) Intimidating me. 14. THAT as a result of the criminal proceedings, which saw me miss work when I was needed to attend Court, and did not receive any pay on those days I missed work, and has caused me to suffer tremendous loss, both psychologically and economically. 15. THAT I also incurred costs of appointing an Advocate in the criminal proceedings to represent me. whom we paid him Kenya Shillings One Hundred Thousand(Kshs 100,000/=) over time. 16. THAT I now seek compensation for the loss have suffered die to the malicious prosecution by the Defendants herein. When cross examined she said the case was dismissed after the 1st defendant failed to attend court. She was arrested after the complainant made a report to the police.she was told why. After being detained on Sunday she was taken to court on Monday. No investigations were done and she did not record a statement. Page 5 of 68

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PW 2 I, KAHASO MWAROME CHIBO, a resident of Kijipwa in Kilifi County within the Republic of Kenya do hereby state as follows. 1. THAT I am an adult female of sound mind and disposition and the Plaintiff herein well conversant with the issues in dispute. 2. THAT On or about the 20th May 2018, my daughter was arrested by the police from Kijipwa Police station on allegations of causing damage to the 1st Defendant's property. 3. THAT she was subsequently charged with the offense of Malicious Damage to property in SHANZU CRIMINAL CASE NO 722/2018-REPUBLIC VS SAUMU KATANA MUNGERA. 4. THAT the purported property alleged to have been destroyed was a makeshift toilet that had put up myself on my family property. 5. THAT my daughter was arraigned in Court on 21st May 2018 where she pleaded not guilty to the charges of malicious damage to property. Page 6 of 68

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6. THAT as at the time of the Plaintiff's arrest, no police officer had visited the alleged scene of incident to confirm their alleged destruction to property and conduct independent investigations. 7. THAT the police Officer ONLY visited the scene of the alleged incident ONE WEEK AFTER the Plaintiff's arrest and arraignment in Court. 8. THAT there is no evidence of any nature that was taken from the alleged scene of the incident of any destroyed property. 9. THAT my daughter was not even at home on the alleged date of the incident as I was at my place of work at EPZ Kanamai. 14. 10. THAT the dispute herein arose out of spite due to me filing a suit against the 1st Defendant at the Malindi Environment and Land Court, being ELC NO 76 OF 2018КАНASO MWAROME CHIBO VS KATANA RIBA KAI, ALFRED SIFA DENA AND FLORENCE TABU BIRYA. (now known as KILIFI MC.ELC NO 74 OF 2022) over our family property to which the 1st Defendant claimed to have bought the same from my husband. Page 7 of 68

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11. THAT on several dates when the matter came up for Hearing, both the 1st Defendant as the complainant and the Investigating officer failed to attend Court and/or avail the police file. 12. The criminal proceedings against my daughter were withdrawn on the 12TH June 2023 after the 1st Defendant and the Investigating Officer failed to appear in Court during the Hearing and present the police file and the witnesses. 13. THAT the arrest and institution of the criminal proceedings in SHANZU CRIMINAL CASE NO 722/2018-REPUBLIC VS SAUMU KATANA MUNGERA were malicious, in bad faith, baseless and without just and probable cause. PARTICULARS OF MALICE ON THE 1ST DEFENDANT q) Deliberately making false and malicious allegations against the Pla'ntiff knowing the same to be false. r) Making a false and malicious report to the police. s) Causing the Plaintiff's arrest without ascertaining the truth and without proper investigation. t) Causing the Plaintiff to be charged and arraigned in Court over malicious allegations. u) Conspiring with the police to have the Plaintiff arrested. V) Causing and Page 8 of 68

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subjecting the Plaintiff to baseless criminal proceedings. w) Deliberately failing to attend Court on multiple occasions as the complainant. x) Failing to avail his witnesses in Court for the trial of the criminal case. PARTICULARS OF MALICE ON THE 2ND DEFENDANT i) Arresting and detaining the Plaintiff on false allegations. j) Failing to conduct proper investigations as to the complaint and false allegations by the 1st Defendant before the Plaintiff's arrest. k) Charging the Plaintiff on false, baseless and fictitious allegations without having conducted any investigations. 1) Intimidating my d=family and the Plaintiff. 17. 14. THAT as a result of the criminal proceedings, missed work on several occasions when she was required to attend Court when she received no pay hence has caused her to suffer psychological and economical loss. 15. THAT we also incurred costs of appointing an Advocate in the criminal proceedings to represent the Plaintiff whom we paid him Kenya Shillings One Hundred Thousand(Kshs 100,000/=) 19. 16. THAT I now seek compensation for the loss Page 9 of 68

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have suffered she has suffered due to the malicious prosecution by the Defendants herein. There was an attempt at settlement which the 1st defendant declined. When cross examined she said that she was present when the plaintiff was arrested. She was not told why DEFENDANT CASE DW 1 Alfred DenaI Alfred Sifa Dena a resident of Vipingo in Kilifi County, within the Republic of Kenya do hereby state as follows; - 1. I am a male adult of sound mind and disposition and the 1st Defendant herein well conversant with the issues in dispute. 2 On or about May 20th 2018, I reported to the Kijipwa Police Station an occurrence where Saumu Katana Mungera had demolished my pit latrine on my Plot in Kijipwa Settlement Scheme for no reason at all. The culprit/demolisher is the Plaintiff in this suit. Page 10 of 68

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3 Subsequently, Saumu Katana Mungera was arrested and reigned in Court for malicious damage of property after a long search by the police as she had gone into hiding. 4 All necessary documents required by the Police for the purpose of this case were availed. For the record this includes, three witness statements namely statement by Alfred Sifa Dena, statement by Gabriel Kenga Karisa and a statement by Rachel John Magia. A valuation report was also availed to the police. 5 The police had visited the crime scene in time and made their report as expected of them before any arrest was made. It was after gathering all the necessary information and report that the police arrested Saumu Katana Mungera and a reigned her in court. 6 Saumu Katana Mungera was charged at Shanzu Law Court with the offense of Malicious damage to property, Criminal case No. 722 of 2018 Republic Vs Saumu Katana Mungera. 7 The case dragged in court for years because the Plaintiff failed to attend court severally. At one time the Plaintiff Page 11 of 68

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requested that the matter to be settled out of court. 8 Although the Police at Kijipwa Police Station would sometimes fail to bond the witnesses in this case, they would still appear in court to give their testimony but for one reason or the other especially failure of the accused person to appear in court, the witnesses would not be heard. 9 It came as a shock to the 1st Defendant that the police file went missing and the suit was withdrawn. My witness and I had the lingering question as in whose interest would a police file go missing? Who would benefit if a police file goes missing? 10 The 1st Defendant has not surrendered or given upon this matter until justice is done. He plans to revisit the matter as soon as the police file resurfaces. 11 Now that Saumu Katana Mungela is before the court, it is a total abuse of court process because she knows that she still has a case to answer on malicious damage of property at Shanzu Law Court as the case was withdrawn under section 87(a) of the Criminal Procedure Code and it can be revisited. Page 12 of 68

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12 The Plaintiff allegation that her being taken to court was due to spite arising from her mother filing suit No 76 of 2018 Kahaso Mwarome Chibo Vs Katana Riba Kai & 2 Others is not based on any evidence or facts. Its an imagination. It is a false allegation and assertion. 13 The allegations by Saumu Katana Mungela are answered as follows, that:-  The 1st Defendant made false and malicious allegations against the Plaintiff is NOT TRUE, unfounded and unsubstantiated.  The malicious damage to property report made to Police by the 1st Defendant to be false and malicious is NOT TRUE, unfound and unsubstantiated.  The arrest of the Plaintiff by Police was without ascertaining the truth and investigation is NOT TRUE, unfound and unsubstantiated. In fact the opposite is true. There was investigation and reports were filed.  That the Plaintiff was arraigned and charged in Court according to the Law  The 1st Defendant did NOT conspire with the police to have the Plaintiff arrested. The Plaintiff should prove this allegation in court otherwise the 1st Defendant is considering a counter claim for defamation by the Page 13 of 68

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Plaintiff. The Plaintiff is in a campaign to tent the reputation of the 1st defendant and the Police force.  The proceedings against the Plaintiff were within the law and were never baseless and No court had such a finding.  The 1st defendant and his witness attended court severally when the Plaintiff failed to appear in Court.  The Plaintiff does not question why the police never bonded the witnesses to appear in court. In whose interest were the witnesses not bonded to appear in court? 14 The Plaintiff has not justified her entitlement for damages, neither general nor specific damages. She does not deserve any compensation at all. 15 The 1st Defendant prays that the Honourable Court dismisses this suit with cost for lack of merit and abuse of court process. ISSUES FOR DETERMINATION What the court has to determine is whether; Page 14 of 68

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1) The 1st defendant made a report to the police against the plaintiff on allegations of malicious damage to property. 2) The plaintiff was arrested, detained and charged with a criminal case. 3) The charges were terminated in favor of the plaintiff. 4) The charges were malicious causing the plaintiff to suffer loss and damage. 5) The defendants are liable to pay damages and costs. PLAINTIFF SUBMISSIONS Your Honour, the Plaintiff instituted this suit vide a Plaint dated20th May2024 seeking general damages under the tort of malicious prosecution in criminal case being shanzu criminal case no. 722 OF 2018 Rep vs Saumu KLatan Mungera as well as special damages of Kshs 100,000/= 2. The Plaintiff has pleaded and particularized malice on the 1st and2ndDefendants. 3. During the Hearing, The Plaintiff produced documents listed listed in the list of documents dated 20 th May 2024 being certified copies of criminal proceedings as Exhibit no 1 and Page 15 of 68

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Pleadings in KILIFI MCELCNO74OF2022 as her Exhibit no 2. . She adopted her Witness statement dated20.05.2026. The Plaintiff also Called her mother as her witness who equally adopted her statement as her evidence in chief. 4. The Plaintiff’s case is that on or about the 20 th May 2018, the 1 st Defendant maliciously and without any probable cause laid information before the police in Kijipwa police Station against the Plaintiff which information was to the effect that the Plaintiff had caused damage to his property, which actions the Plaintiff avers were actuated by malice as he knew the allegations were out of spite and untrue due to an ongoing land dispute that the 1 st Defendant had with the Plaintiff’s mother which dispute is subject of a suit as per exhibit no 2, and because the property alleged to have been damaged was a makeshift toilet that her mother had out up. 5. It is upon the information given by the police by the 1 st Defendant that the Plaintiff testified that she was arrested and charged with the offense of Malicious Damage to property in SHANZU CRIMINAL CASENO722/2018-REPUBLIC VS SAUMU KATANA MUNGERA Page 16 of 68

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and arraigned inCourt on21.05.2018. 6. It is the Plaintiff’s evidence, that, eventually, the criminal proceedings against her were withdrawn on the 12 TH June 2023 after the 1st Defendant and the Investigating Officer failed to appear in Court during the Hearing and present the police file. 7. The Plaintiff testified that she was called by the police uponthe1st defendant lodging his complaint and went to the police station accompanied by her mother and that is when she was arrestedion20.05.2018. 8. The Plaintiff testified that she was intimidated by the police when at the police station. She testified that she did not record any statement with the police before she was arrested. She testified and confirmed that the police did not visit the scene of the alleged incident to ascertain the veracity of the allegations. She testified that she was only asked if it was true or not, and that the police did not want her to explain herself as she testified that she was not at home on the day it was alleged to have damagedthe1st Defendant’s property as she was at work. 9. On whether there was a probable cause for her arrest, the Plaintiff testified that the Page 17 of 68

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police did not bother to go confirm whether there had been any damage as had been reported, she testified that the police did not want her to explain herself, which she testified that demonstrates the malice on the police’s part and further that she was at work on the day the property was alleged to have been damaged. 10. The Plaintiff’s witness, PW2, testified as much as the Plaintiff did, and confirmed there being a dispute over land between herself andthe1st Defendant and that she had filed the suit, being Malindi Environment and Land Court, being ELC NO 76 OF 2018-KAHASO MWAROMECHIBOVSKATANA RIBA KAI, ALFRED SIFA DENA AND FLORENCE TABU BIRYA which was transferred to Kilifi Law Courts, and now known as KILIFIMC.ELC NO 74 OF 2022KAHASO MWAROME CHIBO VS KATANARIBAKAI, ALFRED SIFA DENA AND FLORENCE TABU BIRYA), which suit was filed on the 6 th April 2018 as per the court stamp appearing on Plaintiff’s Exhibit no 2. 11. She testified that it is after being served with the Pleadings in the suit referenced above, that the Plaintiff was arrested. She testified that the Plaintiff was arrested due to Page 18 of 68

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the 1 st Defendant making a complaint with the police over alleged damage to property. She testified that the property that the 1sr Defendant alleged the Plaintiff damaged was a makeshift toilet that she had built herself, which her family used, which the 1srt Defendant had bought together with land from her husband, which purchase became the issue in contest in the civil case. 12. PW2 testified that she went with the Plaintiff to the police station and upon the Plaintiff’s arrest, she inquired why she was being arrested but was not given any information. 13. PW2 testified that she is aware of the mediation for an out of Court settlement to which the 1 st Defendant herein declined to have the issues resolved amicably which eventually saw the matter back in Court. She further testified that the 1 st Defendant was forcing the Plaintiff to admit to having destroyed the property, something he knew to be false. She testified that the 1st Defendant said that he heard that the Plaintiff had destroyed his property. 14. The Plaintiff seeks compensation for malicious prosecution as she testified that her arrest and institution of the criminal proceedings Page 19 of 68

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against her in SHANZU CRIMINAL CASE NO 722/2018-REPUBLIC VS SAUMUKATANAMUNGERA were malicious, in bad faith, baseless and without just and probable cause. 15. We wish to submit as follows; I. WHETHER OR NOT THE PLAINTIFF HAS MET THE STANDARDOFPROOF IN A CASE IOF MALICIOUS PROSECUTION? 16. Your Honour, it is our humble submission that the Plaintiff ought to demonstrate the existence of all the four ingredients required to proof a claim for malicious prosecution. And we wish to place our reliance guided by the principles of law in proving malicious prosecution as outlined by the East African Court of Appeal in MBOWA VS EAST MENGODISTRICTADMINISTRATION [ 1972] EA 352 where it was held that; “ …(1) the criminal proceedings must have been instituted by the defendant, that is, he was instrumental in setting the law in motion against the plaintiff and it suffices if he lays an information before a judicial authority who then issues a warrant for the arrest of the plaintiff or a person arrests the plaintiff and takes him before a judicial authority; (2) the Page 20 of 68

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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; (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 plaintiff’s favour, that is, the plaintiff must show that the proceedings were brought to a legal end and that he has been acquitted of the charge...The plaintiff, 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 suffered damage.” 17. Similarly, in GEORGE MASINDE MURUNGA V ATTORNEYGENERAL [1979] KLR 138, where it was held:“As to malicious prosecution the plaintiff must prove four things:(1) that the prosecution was instituted by Inspector Page 21 of 68

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Ouma(there is no dispute as to this); (2) that the prosecution terminated in the plaintiffs’ favour (there is also no dispute as to this); (3) that the prosecution was instituted without reasonable and probable cause;and (4) that it was actuated by malice.” 18. Further Your Honour, the Odunga’s Digest on Civil Case Law and Procedure at page 5276 provides for the essential ingredients to prove in a malicious prosecution case as follows “a. The criminal proceedings must have been instituted by the defendant. b. The defendant must have acted without reasonable or probable cause. c.The defendant must have acted maliciously. d.The criminal proceedings must have been terminated in the plaintiff’s favor.” 19. We wish to submit as follows; A. WHETHER OR NOT THE CRIMINAL PROCEEDINGSWEREINSTITUTED BY THE DEFENDANTS? 19. Your Honour, it is not in dispute that the 1st Defendant made a complaint to the police at Kijipwa police station on 20 th May 2018 as against the Plaintiff herein as confirmed in his witness statement, adopted in Court as his evidence. 20. The fact that the 1 st Defendant was the Page 22 of 68

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complainant was also confirmed by the 1 st Defendant in his oral testimony on 21.04.2026 during cross-examination. 21. The Plaintiff testified that she was called by the police on a Sunday, 20.05.2018, and she went to the police station where she was arrested and detained until the following day, when she was arraigned in Court where she was charged on 21.05.2026 and the property she alleged to have destroyed as per the charges read to her in Court, was alleged to belong to the 1 st Defendant, the complainant. 22. It is our humble submission that due to a complaint by the 1 st Defendant to the police, the 2 nd Defendant set the criminal proceedings in motion thereby subjecting the plaintiff to arrest, detention and prosecution. 23. We urge the Honourable Court to so find. B. WHETHER OR NOT THE CRIMINAL PROCEEDINGS INSHANZUCRICASE NO 722 OF 2018 TERMINATED IN FAVOUROFTHEPLAINTIFF? 24. It also our humble submission that the Criminal proceedings instituted against the Plaintiff, being SHANZU CRIMINAL CASE NO722/2018-REPUBLIC VS SAUMU KATANA MUNGERA were withdrawn favour of the Plaintiff herein. 25. It is our humble Page 23 of 68

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submission that Termination does not necessarily have to mean that the criminal case was heard and the Plaintiff acquitted. Termination in favour of the Plaintiff in in instance, and for purposes of malicious prosecution is read to mean that the proceedings in the criminal case, came to an end with a favourable outcome to the Plaintiff. It matters not how the termination was arrived at. 26. On this, we shall place our reliance on the decided case of STEPHEN GACHAU GITHAIGA & ANOTHER V ATTORNEYGENERAL[2015] KEHC 655 (KLR) in which the Honourable Court expounded on what amounts to “termination in favour of the Plaintiff”, and and held that; “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 Page 24 of 68

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an acquittal, a discharge at a preliminary hearing, a withdrawal, or a stay.” (Emphasis ours) 27. Similarly, we are guided by the High Court’s decision on Appeal in the case of ATTORNEY GENERAL V PETER KIRIMI MBOGO&ANOTHER[2021] KEHC 5902 (KLR) where the Court held as follows on withdrawal of charges; “In the premises, withdrawal of the charges leads to a positive finding that the proceedings were determinedinthe1st Respondent’s favour.” 28. It is therefore our humble submission that the withdrawal of charges against the Plaintiff herein `under Section 87a of the Criminal Procedure Code, is indeed a termination of the criminal proceedings in favour of the PLAINTIFF., and we urge the Honourable Court to so find. C. WHETHER OR NOT THE PROSECUTION WAS INSTITUTEDBYMALICE AND WITHOUT REASONABLE OR PROBABLECAUSE?29. Your Honour, we wish to submit on the malice and unreasonable cause that was perpetuated by the Defendants herein in the arrest, detention and prosecution of the Plaintiff. 30. Your Honour, it is our humble submission that an arrest ought to be done upon Page 25 of 68

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conducting investigations as to the matter complained about. It is upon the findings of the investigation, that an arrest is made. This was not the case in this matter. 31. The police at Kijipwa Police Station were mandated to conduct their investigations before they could make an arrest and commence public prosecution of the Plaintiff on behalf of the Attorney General, now known as the Director of Public Prosecutions. The duty of the investigating Officer in a criminal case, is to present the results of his investigations that leads him to believe that the suspect has committed an offence, before approval of charges and arraignment in Court. 32. The Plaintiff herein has to demonstrate malice on the part of the Defendants. Malice connotes the use of justice for some other motive other than bringing the Plaintiff to justice upon a reasonable belief that he is guilty. Malice can be inferred from the lack of reasonable and probable cause. Malice can also be inferred from the manner in which the arrest and/or act being complained of was handled. 33. The definition of what constitutes Malice has been outlined in the book of Clerk and Lindsell on Torts, 19th ed. (2006) at Page 26 of 68

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page 991, as: “Malice in this context has the special meaning common too the torts and covers not only spite or ill-will but also improper motive. The proper motive for a prosecution is, of course, a desire to secure the ends of justice. If a claimant satisfies a jury, either negatively that this was not the true or predominant motive of the defendant or affirmatively that something else was, he proves his case on the point. Mere absence of proper motive is generally evidenced by the absence of reasonable and probable cause.” 34. Your Honour, it is the mandate of the Office of the Director of public Prosecution to consider the material presented, and only commence public prosecution if satisfied that a suspect is probably guilty. This is the test applied in such cases to prove a reasonable and probable cause, as held in the case of GEORGE MASINDE MURUNGA V ATTORNEY-GENERAL[1979] KEHC 34 (KLR) where the High Court held as follows; “...The test whether the prosecution was instituted without reasonable and probable cause is whether the material known Page 27 of 68

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to the prosecutor would have satisfied a prudent and cautious man that the plaintiff was probably guilty of the offence.” 35. A definition of what is reasonable shall suffice at this juncture. The Black’sLaw Dictionary (10th Edition) defines ‘reasonable’ as; “-Fair, proper or moderate under the circumstances; Whereas “Probable Cause” on the other hand has been defined as;“A reasonable ground to suspect that a person has committed or is committing a crime” 36. Further, The term "reasonable and probable cause" was defined in the case of GLINSK V MCLVER[1962] AC 726 by Lord Devlin, who held that; “reasonable and probable cause means that there must be sufficient ground for thinking that the accused was probably guilty but not that the prosecutor necessarily believes in the probability of conviction…” 37. Your Honour, the constitution of a reasonable and probable cause, as explained in the above mentioned decided case, will stem from the inclusiveness of the material comprising the facts and information presented to the prosecution, and must be such that it can satisfy an ordinary, reasonable, prudent and Page 28 of 68

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cautious man to believe that the accused person is probably guilty. Where the material presented is based upon information, the information must be reasonably credible such that the ordinary, reasonable, prudent and cautious man would believe it to be true and that it can form a strong basis for prosecution, having in mind the standard of proof in a criminal case. 38. Your Honour, the Plaintiff testified that she was arrested without the police having even visited the scene of the alleged incident to confirm the veracity of the complaint reported by the 1 st Defendant. She was not given an opportunity to state her facts. She did not even record a statement with the police upon her arrest. According to PW2’S testimony, the 1 st Defendant in the mediation sessions said that he was told that the Plaintiff had damaged the toilet. He did not witness the alleged damage being committed by the Plaintiff. The Plaintiff was arrested based on the complaint of the1st Defendant alone. 39. Your Honour, it is our humble submission that had the Plaintiff been accorded an opportunity to give her facts to the police upon being summoned, which Page 29 of 68

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opportunity she was denied, and had the police visited the scene of the alleged damage, the Police would have determined that there was a long standing dispute over the suit property, and which case was pending before the Court over the purchase of the property where the makeshift toilet is alleged to have been damaged./ Had the police conducted their investigations, they would have appreciated the fact that the toilet alleged to have been damaged by the Plaintiff was actually one being used by the Plaintiff and her family. 40. Your Honour, it is our humble submission that at the time of charging the Plaintiff, the 2 nd Defendant did not have the full facts and circumstances of the matter upon which the charges she was arraigned over could be founded on. This against, goes to demonstrate the lack of a existence of a reasonable and probable cause for the arrest of the Plaintiff and is clear proof of malice on the Defendants. 41. Malice is also demonstrated by the evidence of PW2 who testified of an existing dispute over land between herself and the 1 st Defendant and that she had filed a suit on 6 th April Page 30 of 68

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2018 as evidenced by the Court stamp appearing on PLAINTIFF’S EXHIBIT NO 2, being Malindi Environment and Land Court, being ELC NO 76 OF 2018-KAHASO MWAROMECHIBOVSKATANA RIBA KAI, ALFRED SIFA DENA AND FLORENCE TABU BIRYA which was transferred to Kilifi Law Courts, and now known as KILIFIMC.ELC NO 74 OF 2022KAHASO MWAROME CHIBO VS KATANARIBAKAI, ALFRED SIFA DENA AND FLORENCE TABU BIRYA). 42. She testifies that it upon being served with the court documentsthe1st Defendant got the Plaintiff arrested. She further testified that the property alleged to have been damaged is a makeshift toilet that she built herself.the1 st Defendant did not build the toilet alleged to have been damaged. The Plaintiff was arrested on 20 th May 2018 the same day the complainant made a report to the police. 43. Your Honour, we wish to further infer the act malice from the sequence of events. It is upon being served with the Summons and Pleadings in ELCNO76 OF 2018-KAHASO MWAROME CHIBO VS KATANA RIBAKAI andALFRED SIFA DENA that the 1 Page 31 of 68

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st Defendant hatched the plan of getting the Plaintiff arrested. It was a way to punish the Plaintiff’s mother. Who had filed the suit against him. 44. Your Honour, it is our humble submission that the 2 nd Defendant through the Kijipwa police station and more particularly the Investigating Officer in this matter had no reasonable and probable cause to arrest the Plaintiff at the time they did so. Having not visited the scene of incident as alleged, the IO DID NOT ascertain the accuracy of the complaint lodgedbythe1st Defendant before effecting an arrest. 45. It is our humble submission that Investigations are expected to be conducted professionally because the decision to charge a person with a criminal offence attracts heavy consequences that can lead to one’s freedom being taken away. This is the reason as to why the standard of proof in criminal cases is on beyond reasonable doubt. And before one is charged, the ODPP has to make sure that the evidence they seek to present in Court will at least carry a guilty verdict. 46. It is our humble submission that there were no investigations carried out,. As prudent and diligent investigating officer, the police ought to Page 32 of 68

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have went to the scene of the alleged damaged property and drawn up the scene of the incident and taken photographs of the same. At what point were investigations done, completed and the file forwarded to the ODPP for approval of charges? The test of reasonableness and prudent and diligent man fails. 47. We urge the Honourable Court to be guided by the binding decision of Nambuye J (as she then was)in the case of SAMSON JOHNNDERITUVTHE ATTORNEY GENERAL [2010] eKLR, where the Court made an award of Kshs 1,500,000/= IN 2010, where the Court held as follows: - “It is trite and this court, has judicial notice of the fact that before an accused person is taken to court, and arraigned in court for criminal prosecution, the prosecuting authority namely the police or whatever unit, whose functions fall under the office of the Defendant, usually carry out investigations, record statements from potential witnesses, analyze the facts to determine if the facts disclose an offence before arraigning such a person in a court of law.” 48. Your Honour, we can further infer malice and lack of a reasonable cause by the actions of the Investigation Officer Page 33 of 68

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even after the arraignment of the Plaintiff herein. The Investigating Officer did not bother to avail the police file, even after being summoned by the Court to do so. The 1 st Defendant himself has not availed any witness statements that he recorded with thepolice. This clearly shows that there was no evidence and/or investigations by the police that they could present before the Court as against the Plaintiff. Investigation files do not, most certainly, have legs such that they can just disappear from the station? It simply signifies a case perpetuated by malice as a way to intimidate the Plaintiff and by extension her mother due to a civil dispute that the Plaintiff’s mother had filed against the1st Defendant. 49. Your Honour, Defendant’s actions to arrest and charge the Plaintiff falls short of the test of a reasonable and diligent man to carry a guilty verdict. The 1st Defendant’s Complaint alone could not in any way satisfy prudent and cautious man that the Plaintiff was probably guilty. 50. Your Honour, the Defendants’ action that goes further to prove lack of a reasonable cause include the 1st Defendant’s EXHIBIT NO1, being the Valuation Report. Page 34 of 68

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This is a report done in 16 th April 2019, a year after the Plaintiff had been charged in Court. 51. It is also very telling that the 2 nd Defendant did not call the Investigating Officer in this matter, or any other representative, as their witness. This is clearly proof of lack of any explanation to the unlawful and unprocedural actions that were taken by the Defendants against the Plaintiff herein. 52. We wish to place our reliance on the binding decision of the High Court on Appeal on what constitutes a reasonable and probable cause in the case of KENYA WINES AGENCY V ATTORNEY GENERAL &4OTHERS[2022] KEHC 10883 (KLR) where it was held; “To prove reasonable and probable cause, the totality of the material within the knowledge of the prosecutor at the time of instituting the prosecution, whether the material consists of facts discovered by the prosecution team or information which has come to him through the complainant, 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.” 53. Page 35 of 68

page 35 of 68

Your Honour, it is our humble submission, that from the foregoing, the Plaintiff has on a balance of probabilities, demonstrated that his arrest and arraignment in Court was being used for some other skewed reason other than the ordinary pursuit of bringing the offender to justice. That the arrest was a way of intimidating the Plaintiff and her mother having suedthe1stDefendant in the land dispute matter over the same property. The1st Defendant used his position and standing in society to intimidate the Plaintiff and her family. D. WHETHER THE PLAINTIFF IS ENTITLED TO COMPENSATION?54. Your Honour, as submitted above, the Plaintiffs’ prosecution was malicious and had to endure an unlawful arrest, remanded and being charged in court only for the charges to be terminated after a period of Five (5) good years. 55. We wish to submit that in the circumstances the Plaintiff is entitled to both general and punitive damages for what she suffered as a result of the allegations that caused her unlawful arrest and malicious prosecution.56. Your Honour, we wish to be guided by the binding decision of the High Court on Appeal in ATTORNEY Page 36 of 68

page 36 of 68

GENERAL V PETER KIRIMI MBOGO&ANOTHER [2021] KEHC 5902 (KLR), quoted above, where an award of Kshs 2,700,000/= was made as general damages for malicious prosecution. “The nature of damages recoverable in a claim for malicious prosecution is punitive, for the malicious acts of the Defendant and this is ordinarily in the form of general damages which are awarded to compensate the Plaintiff”. 57. The distinction between general damages and punitive damages has been outlined in the case of BRUTUS NANDWA WA AMBUNYA V INSPECTORGENERAL OF POLICE & ANOTHER [2018] eKLR where an award of Kshs2,302,880/= was made as general damages, and the High Court held that:- “Punitive or exemplary damages are awardable only under two circumstances, namely: - i) where there is oppressive, arbitrary or unconstitutional action by the servants of the government; and ii) where the Defendant’s action was calculated to procure him some benefit not necessarily financial, at the expense of the plaintiff.” 57. Your Honour, it is our humble submissions that the actions of the2ndDefendant’s agents which included among others the Page 37 of 68

page 37 of 68

unconstitutional actions unlawfully arresting the Plaintiff without any reasonable cause and holding her in the police cell for a bailable offence and a misdemeanor, hence entitled to punitive damages. 58. Your Honour, the Plaintiff prays for general damages for malicious prosecution for the psychological and economical loss following her arrest and charging in Court, which she testifies that caused her to miss work on the days she was required to attend Court, as well as going without pay on those days. She had to appoint Counsel to represent her in the criminal proceedings. 59. The Plaintiff submits that an award Million(Kshs3,000,000/=) is of Kenya sufficient Shillings Three compensation for malicious prosecution and unlawful arrest. 60. We place our reliance on the Ugandan case of DR. Willy Kaberuka vs Attorney General Kampala where the court held that; “The plaintiff suffered injury to his reputation. .............................He must have suffered the indignity and humiliation. He is also entitled to recover damages for injuries to his feelings especially the possibility of Page 38 of 68

page 38 of 68

serving a sentence…There are no hard and fast rules to prove that the plaintiff’s feelings have been injured or that he has been humiliated as this is inferred as the natural and foreseeable consequence of the defendant’s conduct. The plaintiff’s status in Society is also a relevant consideration and for all these reasons the plaintiff is entitled to damages…A plaintiff who has succeeded in his claim is entitled to be awarded such sum of money as will so far as possible make good to him what he has suffered and will possibly suffer as a result of the wrong done to him for which the defendant is responsible.” emphasis ours II. WHETHER OR NOT THE PLAINTIFF IS ENTITLED TO COSTSOFTHISSUIT 61. Your Honour, the Plaintiff having proven her case against the Defendants, and their actions being the reason why the Plaintiff filed this suit, the Defendants should consequently bear the costs of this suit. 62. Your Honour, in view of the foregoing, we therefore submit that the Plaintiffs have proved their case on a balance of probability and pray that judgement be entered as submitted above. 63. We equally pray for interest on both the general Page 39 of 68

page 39 of 68

damages and costs of the suit. 64. These are our humble submissions on behalf of the Plaintiff 1ST DEFENDANT SUBMISSIONS Your Honour, the Plaintiff came before the Honorable Court vide Suit No. E236 of 2024 asking for general; damages of Ksh 100,000/- from the defendants under a tort of malicious prosecution in a criminal case No. 722 OF 2018 Rep vs Saumu Katana Mungera that was heard and determined. 2. 3. 4. The reason given by the Honorable Magistrate in Shanzu Court for the withdrawal of the matter was the missing file which contained all the allegations against the Defendant in that case Saumu Katana Mungera. The 1st Defendant in this case was not in position to search for the missing file or do anything about the missing file in Shanzu Court. It is the understanding of the 1st Defendant that Ms Saumu Katana Mungera would have prepared a skeleton file and have the case determined within its own merits. But she did not do that by herself or through her advocate. The Plaintiff knew or should have known that the witnesses could be bond Page 40 of 68

page 40 of 68

and were to be bond by the Kijipwa Police to appear in Shanzu law Court but were not bonded. One witness in the criminal case at Shanzu Gabriel Kenga Karisa has since passed on and this is well in the knowledge of Ms Saumu Katana Mongera and her advocates. 5. A criminal case is never ending unless concluded within its merits and when the missing filing is found, the 1st Defendant shall move in Court in Shanzu to ensure Justice is done as expected in law. 6. It is therefore premature for Ms Saumu Katana Mongera to assume her innocence in the Shanzu case because the Shanzu Court never reached a Judgement on her deeds but due to a missing file. A quick reading of the court proceedings confirms that Ms Page 1 of 4 Saumu Katana Mongera was not innocent but the prosecution file was missing in court. 7. The Plaintiff in this case agreed to go for arbitration which was ordered by the court and she agreed to that, why did she agree? She knew or ought to have known the outcome was either positive or negative. She chose to go for the arbitration and when the Page 41 of 68

page 41 of 68

offended asked her to apologize for the offense of demolition of the toilet Ms Saumu Katana Mungela refused to apologize and the case found its way back to Shanzu Court. 8. 9. In her submissions on paragraph 9, Ms Saumu Katana Mungera alleges that the Kijipwa Police were never at crime scene. This is far from the truth. The Kijipwa Police were professional in their work. They took photos of the crime scene and later asked me to provide valuer report at the same. I think the Kijipwa police had no duty or obligation to inform Ms Saumu Katana Mungera what they were doing at the crime scene. In her submissions in paragraph 10, Ms Saumu Katana Mungera tries to mix ELC NO 76 OF 2018KAHASO MWAROME CHIBO VS KATANA RIBA KAI, ALFRED SIFA DENA AND FLORENCE TABU BIRYA which was transferred to Kilifi Law Courts, and now known as KILIFI MC.ELC NO 74 OF 2022-KAHASO MWAROME CHIBO VS KATANA RIBA KAI, ALFRED SIFA DENA AND FLORENCE TABU BIRYA, (whose judgement is already out and the Court has pronounced itself that the land in question is NOT Page 42 of 68

page 42 of 68

matrimonial property) with the above case. The two cases have NO relationship. Every case is handled by the Court within its own merits. 10 In her submissions in paragraph 11-13 Ms Saumu Katana Mungera never alluded that PW2 never saw Ms Saumu Katana Mungera demolishing the toilet in question. As a mother to Ms Saumu Katana Mungera, PW2 always defended her child, the Plaintiff. 11. Your Honour, the 1st Defendant was the complainant in this matter. What the Kijipwa Police did was guided by their work procedure and law and I cannot comment on it but I believe it was ethical. 12. In her submissions in paragraph 20 Ms Saumu Katana Mungera should know or ought to know that the 1st Defendant did not take the law in his hands and did the right thing by informing the Police of the occurrence of toilet demolition. 13. In her submissions in paragraph 24-28 Ms Saumu Katana Mungera alleges that her case was withdrawn by the Court in Shanzu. She does NOT tell this Honourable Page 43 of 68

page 43 of 68

Court that the case FILE could not be found therefore labeled FILE UNFOUND. Once the file is found the 1st Defendant shall move the Honorable Court in Shanzu to do the right thing which is adjudication of the matter on the merits of the case in the interest of justice. 14. In her submissions in paragraph 29-40 Ms Saumu Katana Mungera alleges that her case was malicious and for no course. This is not true. Ms Saumu Katana Mongera was arrested for a reason and she had behaved and acted in a Page 2 of 4 manner likely to cause a breach of peace. As the 1st Defendant in this case showed the police photos of the toilet before demolition and after demolition. The Kijipwa police visited the crime scene and saw the demolition done. The 1st Defendant gave the police the photos of the demolished toilet. The rest done by the police was guided by police professional ethics and the law. The Police is overseen by IPOA. The plaintiff should direct her complain to IPOA. 15. In her submissions in paragraph 42, Ms Saumu Katana Mungera, without giving any reasons, alleges Page 44 of 68

page 44 of 68

that the 1st Defendant had the Plaintiff arrested. This sounds like a figment of her imagination. The 1st Defendant did not cause her to be arrested. Her actions caused her to be arrested by the Kijipwa police. 16. In her submissions in paragraph 42 &43, Ms Saumu Katana Mungera tries to mix ELC NO 76 OF 2018-KAHASO MWAROME CHIBO VS KATANA RIBA KAI, ALFRED SIFA DENA AND FLORENCE TABU BIRYA which was transferred to Kilifi Law Courts, and now known as KILIFI MC.ELC NO 74 OF 2022-KAHASO MWAROME CHIBO VS KATANA RIBA KAI, ALFRED SIFA DENA AND FLORENCE TABU BIRYA, whose judgement is already out and the Couirt has pronounced itself that the land in question is NOT matrimonial property, with the above case. The two cases matters have NO relationship. Every case is handled by the Court within its own merits. The 1st Defendant never rushed to Shanzu Court to settle scores. The date on which the land dispute case was instated by Kahaso is different from the day on which a complaint was made to police in Kijipwa Police Station. They were different dates. One would pause and Page 45 of 68

page 45 of 68

wonder why not fix Kahaso instead of fixing the daughter if at all? It is a way to say the Kijipwa police were not professional or ethical in their work. Why not do a skeleton file and take the police to IPOA? 17. In her submissions in paragraph 50 Ms Saumu Katana Mungera, alleges that the valuation report came a year after the plaintiff had been charged in Shanzu Court. The 1st Defendant states that first he acted after being informed by the Kijipwa Police that he was to submit one. Secondly there was a financial implication and the 1st Defendant could not give valuation report which he could not pay for. The 1st Defendant first got the money for the valuation report and then go the valuation report as required. 18.It is therefore right to say that there was no malice from either party on Ms Saumu Katana Mungera on her being arrested and prosecuted and everything was done as per the law of the land. 19. In her submissions in paragraph 54-60 Ms Saumu Katana Mungera, wants the court to approve her need for compensation. She alleges that her arrest and prosecution was outside the law. This is far Page 46 of 68

page 46 of 68

from the truth. The Plaintiff was arrested and prosecuted lawfully and that the file where her charges were stored could not be found. It is the 1st Defendant case that the plaintiff had an option of doing a skeleton file and/or reporting the matter to IPOA and have her acquitted for lack of evidence on the alleged charges. This would warrant the compensation. In the circumstances the Plaintiff does not deserve any compensation. 20. Your Honour, where there is no compensation, I think naturally there will be no entitlement for the case costs. 21. Your Honour, these are the 1st Defendant humble submissions. 2ND DEFENDANT SUBMISSIONS The Plaintiff instituted the present suit against the 1st and 2nd Defendants via a Plaint dated 27th June 2024 seeking, inter alia, general damages for alleged malicious prosecution, special damages of Kshs. 100,000/=, costs of the suit and interest. 2. The Plaintiff's case is that on or about 20th May 2018, following a complaint lodged by the 1st Defendant Kijipwa Police Station alleging damage to property, she was arrested and Page 47 of 68

page 47 of 68

subsequently charged with the offence of malicious damage to property in Shanzu Criminal Case No. 722 of 2018, Republic v Saumu Katana Mungera. She pleaded not guilty to the charge. 3. The Plaintiff contends that the complaint made by the 1st Defendant arose from an existing land dispute involving her mother and the 1st Defendant, and that the criminal proceedings were therefore instituted maliciously and without reasonable or probable cause. She further alleges that the police failed to conduct proper investigations before preferring the charge and that her arrest, detention and prosecution were actuated by malice. 4. The record shows that the criminal proceedings remained pending for several years and were ultimately withdrawn on 12th June 2023 upon an application by 2 the prosecution. Consequently, the Plaintiff instituted the present proceedings alleging that the prosecution was malicious and seeking damages against both Defendants jointly and severally. 5. The 2nd Defendant filed a Statement of Defence denying the Plaintiff's allegations and maintaining that, if the Plaintiff was Page 48 of 68

page 48 of 68

arrested and charged, the same was done pursuant to a lawful complaint, within the confines of the law, and upon the exercise of the investigative and prosecutorial mandate of the relevant authorities. 6. The 2nd Defendant further contends that the mere withdrawal of the criminal proceedings does not, of itself, establish malice or the absence of reasonable and probable cause, and that the Plaintiff has failed to prove the ingredients of the tort of malicious prosecution. 7. The matter proceeded to full hearing. The Plaintiff testified in support of her claim and called one additional witness, namely, PW2, Kahaso Mwarome Chibo. The 1st Defendant likewise testified in support of his defence. The 2nd Defendant did not tender oral evidence and elected to rely on the Plaintiff's failure to discharge the burden of proving the claim for malicious prosecution on a balance of probabilities, as well as the evidence elicited during the hearing and the record before the Court. B. ISSUES FOR DETERMINATION 8. Your Honour, we submit that the following are the issues for determination to be Page 49 of 68

page 49 of 68

interrogated and considered by this Honourable Court which we shall submit under the individual heads: i. Whether the Plaintiff has established the tort of malicious prosecution against the 2nd Defendant. ii. Whether the Plaintiff is entitled to the reliefs sought. C. WHETHER THE PLAINTIFF HAS ESTABLISHED THE TORT OF MALICIOUS PROSECUTION AGAINST THE 2ND DEFENDANT. 9. Your Honour, the elements of the tort of malicious prosecution have been discussed in various authorities. There are certain conditions that ought to be fulfilled for a claim of malicious prosecution to succeed. 3 10. In the often-cited case of Murunga v Attorney General [1979] KLR 138, the principles of the tort of malicious prosecution were spelt out. These are: i. The defendant instituted the prosecution against the plaintiff. ii. The prosecution ended in the Plaintiff’s favour. iii. The prosecution was instituted without reasonable and probable cause. iv. The prosecution was actuated by malice. Page 50 of 68

page 50 of 68

v. (i) The defendant instituted the prosecution against the plaintiff 11. In the present case, it is not disputed that following a complaint lodged by the 1 st Defendant at Kijipwa Police Station, the Plaintiff was arrested and subsequently charged before the Magistrate's Court at Shanzu in Criminal Case No. 722 of 2018 with the offence of malicious damage to property. The prosecution was therefore instituted by officers of the State acting during their statutory mandate. (ii) The prosecution ended in the Plaintiff’s favour 12. It is not contested that Shanzu Criminal Case No. 722 of 2018 was withdrawn on 12th June 2023. 13. However, it was withdrawn under Section 87(a) of the Criminal Procedure Code, not Section 210 (no case to answer) or Section 215 (acquittal). A section 87(a) withdrawal is not an acquittal, and the State retains the right to reinstitute the charge; DW1 confirmed he intends to revisit the case once the police file resurfaces. 14. Moreover, the court record of 12th June 2023 shows the Plaintiff, through counsel. Expressly stated ‘No Objection’ to the withdrawal- inconsistent with Page 51 of 68

page 51 of 68

genuine vindication and undermining her claim that the proceedings were terminated in her favour. 15. It is further notable that the 1st Defendant testified that the Plaintiff herself, at one point, requested that the matter be settled out of court. An innocent person facing what she now characterizes as a malicious and baseless prosecution would ordinarily insist on vindication through a hearing and an acquittal, not seek a negotiated exit. 4 (iii) The prosecution was instituted without reasonable and probable cause. 16. Salmond on the Law of Torts defines reasonable and probable cause as: ".... a genuine belief, based on reasonable grounds, that the proceedings are justified." 17. The test was set out in Benson Macharia Mugo v Attorney General & another [2018] KEHC 6196 (KLR) citing Kagane v Attroney General (1969) EA: "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 Page 52 of 68

page 52 of 68

in the position of the accuser to the conclusion that the person charged was probably guilty of the crime imputed…." 18. There was reasonable and probable cause here. The 1st Defendant formal complaint set the police in motion. DW1 testified, and confirmed under cross-examination, that police visited the scene before any arrest, that he pointed out the damaged pit latrine, and that he supplied three witness statements (his own, Gabriel Kenga Karisa, and Rachel John Magia) and a Valuation Report, all received and retained by police. 19. The evidence gathered — witness statements and a Valuation Report — was credible enough for a reasonable, prudent person to find it substantially true and to find the prosecution. 20.Your Honour, the evidence on this element is, in truth, settled by the Plaintiff's own testimony. Under crossexamination, the Plaintiff confirmed that she was arrested pursuant to a complaint that had been lodged at the police station and agreed that police officers have a duty under the law to act on complaints received. She further confirmed that she was not arrested in the absence of a complainant's Page 53 of 68

page 53 of 68

statement 21. As affirmed in Sylvanus Okiya Ongoro v Director of Criminal Investigations & 4 others, citing Kagane v Attorney General (1969) EA 643: "If the material known to the prosecutor is based upon information, the information must be reasonably credible, such that an ordinary reasonable 5 prudent and cautious man could honestly believe to be substantially true and to afford a reasonably strong basis for the prosecution. If a prudent and cautious man would not have been satisfied that there was a proper case put before the Court, then absence of reasonable and probable cause has been established. If a prudent and cautious man would believe that the accused was guilty then the Court has to consider the further question as to whether the prosecutor himself did not believe in the probable guilt of the accused, and this is obviously a matter which is to be judged..." 22.It is not for police to determine guilt — that is the province of the court. Here, a complaint was made, investigations conducted (including a scene visit), evidence gathered (three witness statements and a Valuation Report), Page 54 of 68

page 54 of 68

and the ODPP independently decided to charge. This element is not satisfied by the Plaintiff. (iv) Whether the Prosecution was Actuated by Malice 23. In National Oil Corporation v John Mwangi Kaguenyu & 2 others [2019] eKLR, the court held: "…case law is replete on the issue of malicious prosecution, of critical importance is that a litigant must establish malice. It is not sufficient to find one liable on the basis that he/she is the one who made the complaint." 24 .In Nzoia Sugar Company Ltd v Fungututi [1988] KLR 399: "Acquittal per se on a criminal charge is not a 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." 25. The Plaintiff's particulars of malice against the 2nd Defendant are, in substance, that she was arrested and charged without proper investigation and that she was intimidated. Both fall away on the evidence led. On intimidation, when asked under Page 55 of 68

page 55 of 68

cross-examination to specify the exact words used against her, the Plaintiff could offer nothing beyond a vague, nonresponsive answer. She confirmed she made no written complaint to any police authority or oversight body such as IPOA, could point to no witness or record to support the allegation, and 6 confirmed that no disciplinary action has ever been taken against the 2nd Defendant on account of misconduct towards her. 26. PW2, who was present at the police station albeit in a separate room, confirmed under cross-examination that she could not confirm the alleged intimidation at all. When pressed directly on whether she had any personal evidence that the 2 nd Defendant acted out of ill will rather than in discharge of duty, the Plaintiff gave no responsive answer 27.No evidence of spite, ill-will, or improper motive has been led against the 2nd Defendant; the Plaintiff has not shown any prior association with the arresting officers that would explain malice. In James Karuga Kiiru v Joseph Mwamburi and 3 Others, Nairobi CoA No. 171 of 2000: Page 56 of 68

page 56 of 68

"To prosecute a person is not prima facie tortuous, but to do so dishonestly or unreasonably is. And the burden of proving that the prosecutor did not act honestly or reasonably lies on the person prosecuted." 28. And in Sedrick Musyoka Mathuku v Makasa Kithu; Attorney General (Interested Party) [2020] KEHC 8484 (KLR) citing Katerrega v Attorney General (1973) EA 289: "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 motive." 29. The withdrawal itself is not evidence of malice. The court record of 26th April 2023 shows the Prosecutor explained that Kijipwa Police Station had been delinked from Shanzu Court and now files at Kilifi Law Courts — an administrative reorganisation explaining the missing file, not malice. The police and prosecutors acted in the public interest on credible information until the file could no longer be traced. 30.No Page 57 of 68

page 57 of 68

procedural irregularity has been alleged. The 1st Defendant had a right and duty to report suspected criminal conduct, and the subsequent withdrawal does not retroactively prove malice. Tellingly, the Plaintiff herself repeatedly pursued 7 out-of-court settlement and AJS mediation — conduct inconsistent with a claim of being maliciously framed. 31. The Plaintiff has not proven, to the required threshold, that her prosecution was actuated by malice. D. WHETHER THE PLAINTIFF IS ENTITLED TO THE RELIEFS SOUGHT. 32.Your Honour, the Plaintiff prays for (a) general damages, (b) special damages of Kshs 100,000/=, (c) costs of the suit, (d) interest on (a), (b) and (c), and (e) any other relief the Court deems fit. It is our submission that none of these reliefs is available to her against the 2nd Defendant. 33.General damages for malicious prosecution are only recoverable where the tort itself has been established. Having submitted that the Plaintiff has failed to prove that the prosecution terminated in her favour, that it lacked reasonable and probable cause, or that it was actuated by malice, the foundation for an award of general damages does not arise. A Page 58 of 68

page 58 of 68

claimant cannot be compensated for a wrong that has not been proved. 34 .It is trite law that special damages must not only be specifically pleaded but also strictly proved. In Capital Fish Kenya Limited v The Kenya Power & Lighting Company Limited [2016] KECA 56 (KLR), the Court of Appeal held: “it is trite law that special damages must not only be specifically pleaded, they must also be strictly proved with as much particularity as circumstances permit." 35. The Court in that case went further to hold that a claim for special damages cannot be sustained where the claimant, though pleading specific sums, produces no receipts, invoices, audited accounts, or similar documentary proof, and that a party who merely throws a figure at the court without credible supporting evidence is not entitled to have it awarded. 36.The Plaintiff has not placed before this Court any receipts, invoices, or other documentary evidence to substantiate the figure of Kshs 100,000/=. A bare averment in the pleadings, unsupported by evidence, cannot sustain an award of special damages, and Page 59 of 68

page 59 of 68

this head of claim ought to fail for want of proof, quite apart from the fact that the underlying tort has not been established. 37.Costs follow the event. As the Plaintiff's suit against the 2nd Defendant ought to be dismissed, the Plaintiff is not entitled to costs; rather, the 2nd Defendant, 8 having been put to the trouble and expense of defending an unsubstantiated claim, should be awarded the costs of the suit. 38.There being no proven cause of action and no proven loss, there is no basis upon which this Court can exercise its discretion to grant relief in the Plaintiff's favour. E. CONCLUSION 39.Your Honour, the Plaintiff has failed to prove the essential elements of the tort of malicious prosecution against the 2nd Defendant. It follows that the Plaintiff is not entitled to any of the reliefs sought: general damages cannot be awarded absent proof of the tort. ANALYSIS AND DETERMINATION From what is presented it is not in dispute the plaintiff and 1 st defendant are known to each other. It is admitted that the 1 st defendant reported a case of malicious damage to Kijipwa Page 60 of 68

page 60 of 68

police station leading to the arrest of the plaintiff and subsequent arraignment at Shanzu law. It is also not in dispute that the charge was later withdrawn under section 87A of the criminal procedure code. The plaintiff has now filed this case seeking compensation for what she says was a malicious charge. She contends that no investigation was done, she was not given a chance to record a statement, was detained at the station without being given bail, charges preferred, failure by the prosecution to avail witnesses and eventually the charges being withdrawn. According to the plaintiff, the trumped up charges were in response to a civil case filed by the plaintiffs mother against the 1st defendant at the malindi high court which was later transferred to Kilifi. The defendants argue there was sufficient evidence to warrant the charges preferred. The withdrawal of the charge under section 87a of the cpc did not acquit the plaintiff since she could still be arrested and charged. The court has seen the pleadings in ELC NO E 7 of 2018. The plaintiff’s mother Kahaso Mwarome on 6th april,2018 sued the Page 61 of 68

page 61 of 68

1st defendant and two others seeking to challenge a sale transaction between the 1st defendant Katana Kai, a family member who is alleged to have sold the family land without their consent to two other defendants including the 1st defendant herein. This is what the plaintiff says led to her arrest to spite her mother. The second documents she had presented are proceedings in the criminal case number 722 of 2018. The plaintiff was charged a month later in May,2018. The complainant and investigating officer failed to attend court. There was a request to have an out of court settlement which the complainant agreed but no settlement was reached. Subsequently the accused requested that the case proceeds. On numerous court appearances, the police file was never availed or witnesses despite summons being issued to the investigating officer to avail the police file and witnesses. On 26/4/2023 a last adjournment was given. On 12/6/2023 on the day of hearing, there was no police file and witnesses forcing the prosecutor to withdraw the case under section 87(a) of the cpc. On this the Page 62 of 68

page 62 of 68

plaintiff relied on the case of STEPHEN GACHAU GITHAIGA & ANOTHER V ATTORNEYGENERAL[2015] KEHC 655 (KLR) in which the Honourable Court expounded on what amounts to “termination in favour of the Plaintiff”, and and held that; “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.” Also in the case of ATTORNEY GENERAL V PETER KIRIMI MBOGO & ANOTHER[2021] KEHC 5902 (KLR) where the Court held as follows on withdrawal of charges; “In the premises, withdrawal of the charges leads to a positive finding that the proceedings were determined in the1st Respondent’s favour.” Page 63 of 68

page 63 of 68

As argued by the defendants, the provision allows the prosecution to charge the accused afresh. To date, three years later, no charges have ever been presented again. Thus, the withdrawal as held in the two cases is a determination in favour of the plaintiff. It was argued by the defendants that the attempt to settle the case out of court by the complainant was an admission of guilt. This is an interesting and simplistic and I would have almost said, pedestrian opinion which the court never expected by the defence. Any attempt to settle or seek alternative justice resolution cannot be an admission of guilt or liability. Often, for example, a party may seek court annexed mediation. This does not amount to admission of liability or guilt. When such attempt fails, the court will never take that into evidence. It is taken that such negotiation is done on a ‘’without prejudice basis.’’ If no settlement is reached, the court will not make any inference on the attempted settlement. When a settlement is reached and presented that is when it forms part of the court record capable of being endorsed as an order of the court. Page 64 of 68

page 64 of 68

In a case seeking compensation for malicious prosecution, the superior courts have laid the grounds. Both side have cited many cases on this, some being the same cases. For example both sides cited the case of GEORGE MASINDE MURUNGA V ATTORNEYGENERAL [1979] KLR 138, where it was held:“As to malicious prosecution the plaintiff must prove four things:(1) that the prosecution was instituted by Inspector Ouma(there is no dispute as to this); (2) that the prosecution terminated in the plaintiffs’ favour (there is also no dispute as to this); (3) that the prosecution was instituted without reasonable and probable cause;and (4) that it was actuated by malice.” 18. Further Your Honour, the Odunga’s Digest on Civil Case Law and Procedure at page 5276 provides for the essential ingredients to prove in a malicious prosecution case as follows “a. The criminal proceedings must have been instituted by the defendant. b. The defendant must have acted without reasonable or probable cause. c.The defendant must have acted maliciously. d.The criminal proceedings must have been terminated in the plaintiff’s favor.” Page 65 of 68

page 65 of 68

What comes out is appalling. At the time the 1 st defendant reported to the police he was aware he had been sued in a land case over ownership of the land. He did not tell the police this information. He has not denied the civil case. When the plaintiff was arrested, she was never given an opportunity to record a statement. This would have enabled her to lay bare the nature of the dispute. The investigating officer failed in his duties. If he had handled the case well he should have realized there was a pending civil dispute. He did not bother. The 2nd defendant has argued there was sufficient reason to charge the plaintiff. The attorney general did not call any witness. At best they should have called the investigating officer or any other officer to present the basis on which they thought the plaintiff should be charged. The witnesses intended to be called in the criminal trial were never called to testify. The valuation report alleged to have been prepared was also not availed in this case. Based on the authorities cited and the evidence given , the court finds that the ingredients as given by the superior courts Page 66 of 68

page 66 of 68

have been satisfied. On a balance of probability, the court is satisfied the plaintiff has established liability against the defendants jointly and severally. The prosecution instituted against her is malicious. On quantum, the plaintiff proposed general damages of 3,000.000/= and cited case law in support. The defendants in their respective submissions did not make any proposals on damages. The court has considered the authorities in support and circumstances. The proposal is on the higher side. The plaintiff only spent one night in police custody. She however had to endure going to court for 5 years before the case was withdrawn. The court taking into account all factors finds an award of 1,000,000/= adequate compensation. Special damages of 100,000/= was pleaded. The defendants submitted that this has to be pleaded and proved. In the plaint a figure was given with no breakdown. In the evidence no proof of the same was given. The claim is no supported and will be disallowed. Judgment is entered as follows; Page 67 of 68

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1) Liability at 100% against the defendants jointly and severally. 2) General damages …………………………………………1,000,000/= The plaintiff will have costs of the suit and interest. Right of appeal of 30 days. DATED AT KILIFI THIS 6TH DAY OF OCTOBER 2026 CHARLES OBULUTSA CHIEF MAGISTRATE MISS NYAMBANE FOR PLAINTIFF MR OJWANG FOR 2ND DEFENDANT 1ST DEFENDANT PRESENT IN PERSON Page 68 of 68

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