In a landmark ruling on December 9, 2024, Justice Jesse Njagi of the High Court awarded Ksh. 3.5 million to Margaret Ayuma Katungu, a former financial attaché at the Kenyan High Commission in Harare, Zimbabwe, who had been subjected to malicious prosecution.
Katungu, who served in Zimbabwe from 2005 until her retirement in 2015, had been accused of theft and forgery following an alleged incident in 2010.
However, after enduring years of legal battles and suffering significant mental and financial distress, Katungu was acquitted of all charges in 2016.
The court determined that the criminal prosecution against her lacked reasonable grounds and was driven by malice, specifically due to her actions against senior officials at the Ministry of Foreign Affairs.
Katungu, a retired civil servant, filed the suit against the Ministry of Foreign Affairs and the Attorney General, claiming damages for malicious prosecution.
The plaintiff’s career took a sharp turn in 2010, when she was interdicted by the Ministry on allegations of stealing USD 10,000 from the High Commission’s bank account at Standard Chartered Bank in Harare.
The Ministry claimed that she had forged signatures and withdrawn funds through unauthorized means, leading to her interdiction without following the required disciplinary process.
The incident sparked a lengthy and contentious legal battle. Katungu contended that her interdiction was part of a broader plot by officials at the Ministry to remove her from her position ahead of her scheduled rotation in 2008.
She argued that her removal was preemptively planned to make way for someone else, and the charges were fabricated as part of this scheme.
Despite the Ministry’s actions, Katungu fought back by filing a case at the Employment and Labour Relations Court (ELRC).
In June 2013, the court ruled in her favor, ordering her reinstatement.
However, the Ministry, under the leadership of Principal Secretary Dr. Karanja Kibicho, ignored the court order and Katungu’s reinstatement was never implemented.
Instead, she was charged with forgery and stealing in 2014 after reporting for duty, which led to a criminal trial.
On October 27, 2016, Dr. Kibicho was found guilty of contempt of court and fined Ksh. 200,000 for his role in ignoring the ELRC’s ruling.
Despite these proceedings, Katungu was acquitted of all criminal charges under Section 215 of the Criminal Procedure Code, as the court found no evidence to support the claims against her.
The Allegations of Malicious Prosecution
Katungu’s claims for malicious prosecution were grounded in the assertion that her arrest and subsequent criminal trial were maliciously motivated.
She argued that the prosecution lacked any legitimate evidence to substantiate the charges, making it a deliberate attempt to discredit her and prevent her from returning to work after the court-ordered reinstatement.
In her submission, Katungu highlighted the emotional, financial, and psychological distress she endured as a result of the wrongful accusations.
“I was subjected to an unfair and unnecessary ordeal,” Katungu testified in court.
“I had spent years of dedicated service, only to find myself being wrongfully accused and humiliated by those in power. The whole process was designed to break me, but I stood my ground.”
In response, the Attorney General and Ministry officials denied any malice in the prosecution.
They maintained that there was a reasonable and probable cause for the charges, as investigations had revealed evidence of forgery and unauthorized withdrawals from the High Commission’s account.
The defense argued that the police acted within their lawful duties and that the lengthy investigation process was a result of logistical challenges, including the need for cross-border cooperation between Kenya and Zimbabwe.
However, the court found the defense’s arguments unconvincing. The investigation failed to provide crucial evidence, such as specimen signatures or testimonies from key witnesses.
In fact, the prosecution had not examined the signatures of the Ministry officials who purportedly authorized the payments, nor had they followed standard procedures for verifying the authenticity of the documents.
Justice Jesse Njagi carefully reviewed the evidence presented in the criminal trial, which had led to Katungu’s acquittal, and concluded that the prosecution lacked any substantial basis.
“The charges brought against the plaintiff were based on half-baked evidence,” the judge noted. “The prosecution had no credible evidence to substantiate the claims of forgery or theft, yet they chose to drag the plaintiff through a lengthy and damaging legal process.”
The judge pointed out that the timing of the charges was suspiciously linked to Katungu’s legal victory in the Employment Court, which had ordered her reinstatement.
“It is clear that the prosecution was instigated to thwart the court’s order and to settle personal scores,” Justice Njagi wrote in the ruling.
The court also highlighted the severe impact the prosecution had on Katungu’s life.
The former diplomat had endured five years of legal and professional uncertainty, during which her career was effectively put on hold.
“The plaintiff suffered significant emotional and financial loss during this period, including the stress of dealing with unfounded criminal charges,” the judge concluded.
Damages Awarded
In recognition of the malicious prosecution, Justice Njagi awarded Katungu Ksh. 3 million in general damages, reflecting the emotional and psychological toll of the wrongful prosecution.
Additionally, Ksh. 500,000 was granted as exemplary damages, given the oppressive and retaliatory nature of the Ministry’s actions.
