Githinji v Kibor & 2 others (Civil Suit E277 of 2021) [2026] KEMC 237 (KLR) (30 June 2026) (Judgment) Neutral citation: [2026] KEMC 237 (KLR) REPUBLIC OF KENYA IN THE NAKURU LAW COURTS CIVIL SUIT E277 OF 2021 VO ADET, SPM JUNE 30, 2026 BETWEEN GEOFFREY MWANGI GITHINJI ............................................................ PLAINTIFF AND MARK KIPROTICH KIBOR .......................................................... 1ST DEFENDANT INSPECTOR GENERAL OF NATIONAL POLICE .................... 2ND DEFENDANT ATTORNEY GENERAL .................................................................. 3RD DEFENDANT JUDGMENT Introduction 1. The Plaintifi instituted this suit seeking damages for malicious prosecution, aggravated and exemplary damages, costs, and interest. He was arrested in 2009, charged with robbery with violence, convicted, and incarcerated until 2020 when he was acquitted after a retrial based on new and compelling evidence. He contends that the prosecution was instituted without probable cause, actuated by malice, and resulted in wrongful imprisonment for ten years, ten months, and fourteen days. The Plaintifi ’s Case 2. The Plaintifi testified that the complainant made two contradictory reports: one at Eldoret Police Station of theft of his motor vehicle, and another at Nakuru Police Station of robbery with violence of the same vehicle. The Eldoret report was concealed during the initial trial. Upon retrial, the High Court found that the prosecution had withheld material evidence and acquitted the Plaintifi. 3. He argued that the concealment of evidence, the choice to charge him with robbery with violence instead of theft, and denial of bail terms demonstrated malice. He particularized damages sufiered, including loss of liberty, income, family ties, and dignity. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/237/eng@2026-06-30 1
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The Defendants’ Case 4. The 2nd and 3rd Defendants filed a defence denying the claim but did not tender evidence. Their case was deemed closed without rebuttal of the Plaintifi’s testimony. The Plaintifi ’s Submissions 5. Counsel submitted that the prosecution was malicious and without probable cause. He relied on Kagane & Others v Attorney General [1969] EA 643, where the court held that the test for probable cause is whether the material known to the prosecutor would satisfy a prudent and cautious man that the accused was probably guilty. He also cited Samson John Nderitu v Attorney General (2010) eKLR, which emphasized that police must investigate and record statements before arraigning a person. 6. On damages, counsel cited Morris Thuranira Rukinga v Attorney General & Another, Nairobi HCCC No. 518 of 2011, where the court awarded Kshs. 500,000 for unlawful arrest and Kshs. 2,500,000 for malicious prosecution. Issues For Determination 1. Whether the Plaintifi was prosecuted without reasonable and probable cause and whether the prosecution was actuated by malice. 2. Whether the Plaintifi sufiered damage as a result of the arrest, prosecution, conviction, and acquittal. 3. What reliefs and damages should be awarded. Analysis of the Issues 7. On the first issue, the High Court judgment allowing the retrial found that material evidence had been concealed. The prosecution proceeded on a charge of robbery with violence despite evidence pointing to theft. Applying the test in Kagane & Others v Attorney General [1969] EA 643, no reasonable prosecutor could have believed the charge was likely to succeed. I therefore find that the prosecution was instituted without probable cause and actuated by malice. 8. On the second issue, the Plaintifi was incarcerated for nearly eleven years, denied bail, lost income, and sufiered humiliation. The damage is evident and uncontroverted. 9. On the third issue, courts have awarded damages for malicious prosecution in the range of Kshs. 300,000 to Kshs. 2,500,000. In National Police Service & 2 others v Nyukuri [2025] KEHC 6701 (KLR), the High Court upheld an award of Kshs. 2,000,000 for unlawful arrest, detention, and malicious prosecution. In Morris Thuranira Rukinga v Attorney General & Another, HCCC No. 518 of 2011, the court awarded Kshs. 3,000,000 in total for unlawful arrest and malicious prosecution. 10. Considering the Plaintifi’s prolonged incarceration, concealment of exculpatory evidence, and wrongful conviction, I find that a proportionate award is Kshs. 4,000,000 in general and aggravated damages. This figure is consistent with precedent yet refiects the aggravated circumstances of this case. Disposition 11. Judgment is entered for the Plaintifi against the Defendants jointly and severally as follows: 1. General and aggravated damages in the sum of Kshs. 4,000,000. 2. Costs of the suit. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/237/eng@2026-06-30 2
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3. Interest at court rates from the date of judgment until payment in full. DATED, SIGNED AND DELIVERED AT NAKURU THIS 30TH DAY OF JUNE 2026 SIGNED V. O. ADET SENIOR PRINCIPAL MAGISTRATE In the presence of N/a of the parties Chemutai court assistant https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/237/eng@2026-06-30 3
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