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Court of AppealDismissedCivil Appeal No. 73 of 2016

Hassan Magiya Kiage v Attorney General & another [2017] KECA 203 (KLR)

Court of Appeal of Kenya
10 November 2017
4,387 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal ruled that wrongfully sacked employees cannot claim malicious prosecution against employers who did not instigate the charges, nor collect salaries for years never worked.

What this practically means

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Executive summary

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This was a first appeal to the Court of Appeal at Nairobi (Visram, Karanja and Koome, JJ.A) against a judgment of the Employment and Labour Relations Court (Nduma Nderi, J.) which had awarded the appellant, a former Finance Manager of Tourism Finance Corporation, compensation for unlawful and unfair termination and lost salary during interdiction, while declining jurisdiction over his claim for malicious prosecution and false imprisonment. The appellant had been interdicted and terminated while facing corruption charges brought on the recommendation of the Kenya Anti-Corruption Commission following complaints by a losing tender competitor; he was subsequently acquitted. The Court of Appeal identified two issues: the ELRC's jurisdiction over the malicious prosecution claim, and entitlement to anticipatory damages. On jurisdiction, the court affirmed that the ELRC may entertain issues incidental or connected to employment relations, but upheld the trial judge's refusal of the malicious prosecution claim because the employer did not instigate the prosecution and the actual complainants were not parties to the suit, so any award would have offended the rules of natural justice. The court further held that, in any event, the appellant failed to prove malice, an essential element of the tort. On anticipatory damages, the court endorsed the proportionality principle, holding that such awards would amount to unjust enrichment, and noted that the maximum compensation under section 49(1)(c) of the Employment Act had already been granted. The appeal was dismissed in its entirety, with each party bearing its own costs in view of the financial disparity between the parties.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Employment and Labour Relations Court had jurisdiction to entertain the claim for malicious prosecution and false imprisonment
  2. 2.Whether the appellant was entitled to general damages for malicious prosecution against the respondents as named in the suit
  3. 3.Whether the appellant was entitled to anticipatory salary and allowances, loss of pension and legal fees incurred in defending the criminal case

Key legal issues

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01

Jurisdiction of the ELRC over ancillary claims

Holding

The ELRC has jurisdiction over employment disputes and any incidental or connected issues, but the malicious prosecution claim failed because the employer played no part in the prosecution and the actual complainants were not parties to the suit

Reasoning

The court held that although the ELRC's jurisdiction under Article 162(2)(a) and Section 12 of the ELRC Act extends to incidental matters, the learned Judge correctly declined the malicious prosecution claim because the second respondent exonerated the appellant and the complaint to KACC was made by third parties. Determining the claim would have meant making orders against non-parties, contrary to the rules of natural justice.

p. 6
02

Elements of malicious prosecution

Holding

The essential elements are institution of criminal proceedings by the defendant, absence of reasonable and probable cause, malice, and termination of proceedings in the plaintiff's favour; the appellant proved none as against the respondents named

Reasoning

Relying on Mbowa v East Mengo District Administration and Nelles v Ontario, the court restated the four elements of the tort, emphasising that malice is the key requirement. Since the prosecution was instigated by KACC acting on complaints from non-parties, and the employer had investigated and cleared the appellant, the respondents did not set the law in motion and the claim could not succeed even on the merits.

p. 7
03

Anticipatory damages for unfair termination

Holding

Anticipatory salaries and allowances up to retirement age are not an available remedy; employment remedies must be proportionate to the economic injury suffered

Reasoning

The court endorsed the reasoning in D.K Njagi Marete v Teachers Service Commission as approved in Elizabeth Wakanyi Kibe v Telkom Kenya Ltd, holding that remedies for unfair termination are not aimed at unjust enrichment. The learned Judge had already awarded the maximum compensation of twelve months' gross salary under section 49(1)(c) of the Employment Act, which adequately reflected the appellant's unfair treatment.

p. 7

Legal principles established

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  • The Employment and Labour Relations Court has jurisdiction not only over employment and labour disputes but also over any incidental or connected issues arising from employment or labour relations
  • A court without jurisdiction must down its tools; anything done without jurisdiction is a nullity
  • A claim for malicious prosecution cannot be maintained against a party who did not instigate or set the criminal process in motion; on a first appeal the appellate court re-evaluates and re-assesses the evidence and draws its own conclusions

Court orders

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  1. 1.The appeal fails in its entirety and is dismissed
  2. 2.Each party to bear its own costs of the appeal

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
Martha Karambu Koome
M. K. KoomeJA
Currently serving
majority
On appeal from
Employment & Labour Relations Court of Kenya at Nairobi
E & LRC Cause No. 1021 of 2014
Jurisdiction invoked
First appeal under the Court of Appeal Rules (Rule 29(1)(a)); matter arising from employment and labour relations disputes under Article 162(2)(a) of the Constitution

Relief refused

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General damages for malicious prosecution and false imprisonment

The ELRC had no jurisdiction over the claim since the employer did not instigate the prosecution, and in any event the appellant failed to prove malice against the respondents named in the suit

p. 7

Anticipatory salary and allowances up to retirement, loss of pension and legal fees

Employment remedies must be proportionate to economic injury and must not facilitate unjust enrichment; the maximum compensation under section 49(1)(c) of the Employment Act had already been awarded

p. 8

Costs

Each party to bear its own costs of the appeal

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

This appeal therefore fails in entirety, and is hereby dismissed.
p. 8Final orders - dismissal of appeal
the order that commends itself to us is that each party bears its own costs of this appeal.
p. 8Costs order
the ELRC is clothed with jurisdiction to entertain not only employment and labour disputes but also any incidental issue (s) that may arise or is connected to employment or labour relations.
p. 6Scope of ELRC jurisdiction
Without such jurisdiction, a court ought to put down its tools because anything done without jurisdiction is a nullity.
p. 5Jurisdiction - nullity principle
Finally, the initiation of criminal proceedings in the absence of reasonable and probable grounds does not itself suffice to ground a plaintiff's case for malicious prosecution
p. 7Malicious prosecution - malice requirement
A grant of anticipatory salaries and allowances for a period of 11 years left to the expected mandatory retirement age of 60 years, would not be a fair and reasonable remedy
p. 8Anticipatory damages refused

Issues in the judgment

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minor

The judgment inconsistently refers to Tourism Finance Corporation and Kenya Tourist Development Corporation as the appellant's employer, and numbers the 1st respondent as both Tourism Finance Corporation in the caption and the Attorney General in the body

minor

Paragraph numbering in the judgment skips from paragraph 4 to paragraph 6

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Hassan Magiya Kiage v Attorney General & another [2017] KECA 203 (KLR)", Case Analysis (2017). Civil Appeal No. 73 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/203/eng@2017-11-10

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.