High Court cancels Sh5m payout to ex-CBK officer in ‘missing items’ case

A former assistant officer at the Central Bank of Kenya has lost Sh5 million in compensation after the High Court at Mombasa on February 20 set aside the award.

Naaman Ndege, then a CBK employee seconded to Imperial Bank Limited in receivership, removed a television, colour printer and coffee maker from the Likoni branch, according to court documents.

In May 2018, an IT audit revealed the items were missing.

Ndege claimed he took the items for repairs, arguing that as manager, he had the authority to incur expenses less than Sh10,000 and had sent the items for fixing at Kongowea market.

They were recovered from his house.

In his defence, he claimed that after the repair stalls were demolished, he moved the items to his Kiembeni estate home for safekeeping.

CBK saw it differently. They said Ndege had bypassed Official Asset Movement Forms, failed to notify the regional head and kept the items at his residence even while on annual leave.

Following a police report by the bank, Ndege was charged with theft and handling stolen property.

But in May 2019, he was acquitted under Section 210 of the Criminal Procedure Code when a magistrate’s court ruled that a criminal case had not been sufficiently proved.

Ndege sued the CBK and the Attorney General for malicious prosecution, claiming the bank should have used internal human resource procedures instead of "setting the law in motion" to humiliate him.

He was awarded Sh5 million in general damages and Sh150,000 in special damages, as the magistrate said Ndege was "dragged to court like a common rascal" based on "underwhelming" evidence.

CBK appealed, and on February 20, High Court Judge Jairus Ngaah overturned the award in its entirety.

Ngaah said malicious prosecution requires proof of four distinct elements: that the defendant prosecuted the plaintiff, that the prosecution ended in the plaintiff's favour, that it lacked reasonable and probable cause and that it was motivated by malice.

The judge added that the bank simply reported missing property to the police, who conducted their own investigation before the Director of Public Prosecutions independently decided to charge Ndege.

Critical to the court's reasoning was Ndege's own admission of removing the items and his expression of remorse.

In a letter dated May 23, 2018, responding to a show-cause notice, he wrote: "I wish to explain that I took the subject items in good faith for repairs with a view to returning them immediately they were repaired."

"Sir, I am very remorseful and highly regret my action and hereby promise you that this will never happen again."

The court found that because the items were in Ndege’s house and he had bypassed standard procedures, the bank was justified in reporting the matter to the police.

"The appellant was justified in making a report to the police of its missing property," the judge ruled.

"There is no evidence that the appellant deliberately deceived the police by supplying false information, [given] the absence of which the police would not have acted…Based on the evidence presented before the trial court, I am unable to accept the argument that the criminal proceedings against the 1st respondent were instituted without reasonable and probable cause or that they were maliciously instituted.”

Ndege’s suit was dismissed, and he was ordered to pay the costs of the appeal.