Raphael Kuria Kiwara v Attorney General [2018] KECA 64 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that being acquitted in a criminal case does not stop an employer from disciplining or dismissing the same employee.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the appellant's suit, founded on tort, was time barred under Section 3(1) of the Public Authorities Limitation Act
- 2.Whether the appellant's acquittal of criminal charges rendered his subsequent interdiction, suspension and dismissal wrongful
- 3.Whether the dismissal violated regulations 25(3) and 26(3) of the Service Commissions Act, i.e. whether the charges relied on raised substantially the same issues as those on which he was acquitted
- 4.Whether the appellant was entitled to general and exemplary damages for unlawful dismissal
Key legal issues
#Effect of criminal acquittal on subsequent disciplinary dismissal
The appellant's acquittal of the criminal charges did not render his subsequent interdiction, suspension and dismissal wrongful; the disciplinary charges, though related, raised different issues from those on which he was acquitted.
The court examined the particulars cited by the Permanent Secretary in the letter of 20th April 2000 and found they were not the exact ones for which the appellant had been charged and acquitted; they were 'other charges arising out of his conduct in the matter' under the proviso to regulation 25(3). The court also aligned itself with prior authority holding that criminal and disciplinary processes are distinct, and that an employer may discipline an employee despite acquittal.
Limitation of tort claims against government
The claims for false imprisonment, malicious prosecution and defamation were time barred under Section 3(1) of the Public Authorities Limitation Act, the suit having been filed more than twelve months after the cause of action accrued, and counsel having conceded the objection.
The objection was raised at the High Court hearing, counsel for the appellant conceded it, and the Court found the objection merited and the concession in order. The court's task was thereby confined to whether the dismissal was in accordance with the law.
Availability of general and exemplary damages in unlawful dismissal claims
The Court did not need to decide this issue definitively since the appeal failed on the substantive ground, though the respondent cited authority that such damages are not awardable in employment matters.
The respondent cited Alfred J. Githinji v Mumias Sugar Company Limited and Ronald Kimatu Ngeli v Ukulima Sacco Society Ltd for the proposition that general and exemplary damages are not awardable in employment matters alleging unlawful dismissal. The Court's dismissal of the appeal on the regulation 25(3) issue rendered the point academic.
Legal principles established
#- Acquittal in a criminal case does not automatically render an employee immune from disciplinary action by the employer; a criminal trial and internal disciplinary proceedings are distinct processes with different procedural and standards-of-proof requirements.
- Under the proviso to regulation 25(3) of the Service Commissions Act, an authorized officer may dismiss a public officer previously acquitted of a criminal charge on any other charge arising out of his conduct in the matter, provided the charge does not raise substantially the same issues as those on which he was acquitted.
Court orders
#- 1.Appeal dismissed in its entirety
- 2.Each party to bear his own costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya
- H.C.C.C. No. 1047 of 2001
- Jurisdiction invoked
- First appeal / appeal as of right from the High Court to the Court of Appeal under the applicable appellate framework (not expressly stated in the judgment)
Relief refused
#Setting aside the High Court judgment and assessment/award of damages (general and exemplary) for alleged unlawful dismissal
The acquittal on criminal charges did not render the disciplinary dismissal wrongful; the charges relied on by the employer were related to but not substantially the same as those on which the appellant was acquitted, and the tort claims were time barred by concession
Costs
Each party shall bear his own costs.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Consequently, we hereby dismiss the appeal in its entirety. Each party shall bear his own costs.
a criminal trial and internal disciplinary proceedings initiated by an employer against an employee are two distinct processes with different procedural and standard of proof requirements.
The charges raised therein cannot be said to be substantially the same issues as those on which he had been acquitted. They are related but not substantially the same.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Raphael Kuria Kiwara v Attorney General [2018] KECA 64 (KLR)", Case Analysis (2018). Civil Appeal No. 212 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/64/eng@2018-12-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.