Anthony Shiveka Alielo v Kenya Post Office Savings Bank & another [2019] KECA 895 (KLR)
The bottom line
#Kenya's Court of Appeal dismissed a bank employee's multi-million shilling claim, confirming employers can summarily dismiss staff suspected of theft and that malicious prosecution claims demand proof of malice.
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 High Court had jurisdiction to entertain the appeal from the lower court
- 2.Whether the High Court was proper in holding that the tort of malicious prosecution and illegal confinement was not established
- 3.Whether the appellant was wrongfully and unlawfully dismissed by the 1st respondent and whether the High Court judge was proper in reversing the finding of the trial court
Key legal issues
#Jurisdiction of the High Court over the first appeal from the magistrate's court
The High Court had jurisdiction; the mixed claims arising from the dismissal were within its jurisdiction under Article 165
The plaint raised several causes of action including wrongful arrest and confinement, malicious prosecution and wrongful termination. The claims for damages for unfair termination and malicious prosecution flowed directly from the dismissal, and in exercising its powers under Article 165 of the Constitution the High Court could entertain the dispute in all its aspects and award damages appropriately. The ground of appeal on jurisdiction therefore failed.
Malicious prosecution
The tort was not established; no evidence of malice or want of reasonable and probable cause
The four essentials of malicious prosecution must unite to create a cause of action. Here money in the appellant's custody was found missing and unaccounted for, the police investigated and charged him. There was no false report, no malice, and the prosecution was not brought without reasonable or probable cause. Following Egbema v West Nile District Administration, handing a suspect over to the police for investigation is not actuated by malice where circumstances reasonably pointed to the suspect.
Wrongful and unlawful dismissal
The summary dismissal was lawful and effected in compliance with contractual terms and section 17 of the repealed Employment Act
Section 17(g) of the repealed Employment Act allowed summary dismissal where an employee commits, or on reasonable and sufficient grounds is suspected of having committed, a criminal offence against the employer's property. Section 44 enabled summary dismissal for gross misconduct. The resolution to dismiss was in compliance with the contractual terms of employment, and the Bank's Post Code J.3(iii)e regulations categorised the irregularities as serious offences calling for automatic dismissal. Due process was therefore followed.
Whether the High Court erred in varying the trial court's award of damages
The High Court did not err; no basis was shown to disturb its award of Kshs. 50,000 for wrongful confinement
Applying the Butt v Khan principle, an appellate court will not disturb an award of damages unless it is so high or low as to represent an erroneous estimate, or the judge proceeded on wrong principles or misapprehended the evidence in a material respect. The 2nd respondent had conceded that the confinement was unconstitutional, and no evidence was adduced that the learned Judge proceeded on wrong principles, misapprehended evidence, or took into account an irrelevant factor.
Legal principles established
#- On a second appeal the Court of Appeal is confined to matters of law and will not interfere with findings of fact unless the two courts below considered matters they should not have, failed to consider matters they should have, or the decision is perverse
- The four essential ingredients of the tort of malicious prosecution must all be proved and must unite to establish the cause of action
- An employer may summarily dismiss an employee suspected on reasonable and sufficient grounds of having committed a criminal offence against the employer's property, under section 17(g) of the repealed Employment Act
- An appellate court will not disturb an award of damages unless it is so high or low as to represent an erroneous estimate, or the judge proceeded on wrong principles or misapprehended the evidence in some material respect
- A claim for damages for unfair termination and related claims flowing directly from a dismissal may fall within the High Court's jurisdiction under Article 165 of the Constitution notwithstanding the exclusive jurisdiction of the Employment and Labour Relations Court
Court orders
#- 1.The appeal is dismissed with costs to the respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- HCCA No. 468 of 2013
- Jurisdiction invoked
- Second appeal to the Court of Appeal under its appellate jurisdiction, the judgment being against the decision of the High Court (Sergon J) in HCCA No. 468 of 2013; issues engaged Articles 162(2), 165(5) and 23 of the Constitution on jurisdiction over labour disputes
Relief refused
#Setting aside the High Court judgment and reinstating the trial court's award of Kshs. 3,623,620
The appeal lacked merit: the High Court had jurisdiction, the dismissal followed due process under section 17 of the repealed Employment Act, and no malice or want of reasonable and probable cause was proved
Damages for malicious prosecution against the 1st respondent
The essential ingredients of malicious prosecution, including malice and want of reasonable and probable cause, were not proved; the decision to prosecute was made by the police after investigation
Increase of damages for wrongful confinement to Kshs. 12 million
No evidence that the learned Judge proceeded on wrong principles or misapprehended the evidence or that the figure of Kshs. 50,000 was inordinately low
Costs
The appeal was dismissed with costs to the respondents.
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.
The upshot of the foregoing is that this appeal lacks merit and is hereby dismissed with costs to the respondents.
This Court, on second appeal, confines itself to matters of law unless it is shown that the two courts below considered matters they should not have considered or failed to consider matters they should have considered or looking at the entire decision, it is perverse.
In the exercise of its powers under Article 165 of the Constitution the High Court had jurisdiction to entertain the dispute in all its aspects and award damages appropriately.
In the instant appeal there is no evidence that the 1st respondent made a “false” report, or that it was actuated by “malice”, or that the appellant’s prosecution was brought “without reasonable or probable cause”.
We find that the 1st respondent followed due process in terminating the appellant’s services.
An appellate court will not disturb an award of damages unless it is so high or low as to represent an erroneous estimate.
Issues in the judgment
#The judgment states the appellant was suspended on 18th December, 2009 'While the proceedings were still ongoing', which conflicts with the chronology - the criminal case was concluded on 15th December, 2004 and dismissal followed on 12th March, 2001; the date '2009' appears to be an error for 2000
The judgment states the appellant was acquitted under section 210 of the Criminal Procedure Code at the close of the prosecution case, but later says the acquittal was under section 215, a contradictory statutory basis for the same acquittal
The judgment describes the summary dismissal as being 'based the decision to summarily dismiss the 1st respondent' - an apparent misnomer reversing appellant and respondent, and it also refers to a suspension date of 2009 that post-dates the 2001 dismissal
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Anthony Shiveka Alielo v Kenya Post Office Savings Bank & another [2019] KECA 895 (KLR)", Case Analysis (2019). Civil Appeal No. 52 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/895/eng@2019-03-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.