Firstly, the Tort of Malicious Prosecution is an intentional Tort that provides redress to a plaintiff, for losses incurred following unsuccessful and Malicious proceedings which are initiated without any lawful reasonable or probable cause.
There are 4 elements of the Tort of Malicious Prosecution:
a) That a Prosecution was instituted by the defendant or by someone for whose acts he is responsible – it must be the defendant who goes to make a complain to the police or he must cause someone to initiate the process.
b) That the prosecution terminated in the Plaintiff’s favour. In other words the plaintiff must win the case brought against him by the default.
c) That the prosecution was instituted without reasonable and/or probable cause. This test is an objective test. The material within the knowledge of the prosecutor at the time he instituted the prosecution, 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.
d) That the prosecution was actuated by malice.(Most important). The question the court asks is whether it can be seen, on a balance of probabilities, that the case was being used for some other skewed reason other than the ordinary pursuit of bringing the offender to justice.
Therefore, one must prove the above four elements to succeed in a claim for the Tort of Malicious Prosecution- Silvia Kambura v George Kathurima Japhet [2021]eKLR.
Most importantly, the applicability of the Tort is now extending to cover the domain of Malicious civil proceedings. Traditionally, the Tort was only available to Plaintiff’s against whom Malicious criminal proceedings had been instituted.
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