Automated Summary
Key Facts
Lincoln Njeru and Samuel Nzioi (plaintiffs) claimed they were wrongfully arrested and prosecuted by the 2nd defendant (Mwalimu Cooperative Society) in 2010 for allegedly stealing Kshs.2,000,000 from a client's account. They were acquitted under Section 210 of the Criminal Procedure Code in September 2010. The court dismissed the malicious prosecution claim, finding there was reasonable and probable cause for their arrest based on the 2nd defendant's complaint and police investigation, with no malice proven. The 1st defendant (Attorney General) argued the prosecution was lawful, and the 2nd defendant contended the suit was defective for misjoinder.
Issues
- Whether the plaintiff is entitled to the reliefs sought.
- Whether the plaintiff has made a case for malicious prosecution against the defendants.
Holdings
The court determined that the plaintiffs failed to establish the absence of probable cause for their prosecution, as the evidence showed sufficient grounds for the criminal charges. It also found no malice on the part of the defendants, leading to the dismissal of the suit with costs to the defendants.
Legal Principles
The court applied the doctrine of malicious prosecution, requiring plaintiffs to prove (1) prosecution initiated by defendant, (2) favorable termination, (3) absence of probable cause, and (4) malice. Plaintiffs failed to establish malice and sufficient grounds for dismissal, leading to the court's decision to reject their claim.
Precedent Name
- Kagane v Attorney General
- Kasio Matuku & Kenya Post Office Savings Bank v James Kipkemboi Cheruiyot; Inspector General of Police & Attorney General (Interested Parties)
- Daniel Njuguna Muchiri v Barclays Bank Of Kenya Ltd & another
- Robert Okeri Ombeka v Central Bank of Kenya
- Dadho Gaddae Godhana v Principal Secretary-Ministry of Interior and Coordination of National Government & 2 others
- Stephen Gachau Githaiga & another v Attorney General
- George Ngige Njoroge v Attorney General
- Joseph Wamoto Karani v C. Dorman Limited & another
- Darn Otieno v Stanbic Bank Kenya Limited
Cited Statute
- Criminal Procedure Code, Section 210
- Penal Code, Section 393
Judge Name
J. K. Sergon
Passage Text
- "The key issues for determination therefore are as follows: (i) Whether the plaintiff has made a case for malicious prosecution against the defendants; and (ii) Whether the plaintiff is entitled to the reliefs sought."
- "In action of malicious prosecution the claimant must show first that he was prosecuted by the defendant, that is to say, that the law was set in motion against him on a criminal charge; secondly, that the prosecution was determined in his favour; thirdly, that it was without reasonable and probable cause; fourthly, that it was malicious. The onus of proving every one of these is on the claimant. Evidence of malice of whatever degree cannot be invoked to dispense with or diminish the need to establish separately each of the first three elements of the tort."
- "It is clear in my mind that there was reasonable and probable cause to have the plaintiffs and the co-accused charged. I find no malice on the part of the defendants. In sum, there was a proper cause to prosecute the plaintiffs. I find no merit in the plaintiffs' suit. The same is dismissed with costs to the defendant."