Gilbert Otieno Okite & another v Kenya Sugar Research Foundation [2020] KECA 900 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed employment disputes must be filed in the Employment and Labour Relations Court, and private complainants cannot be sued for malicious prosecution.
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 over the employment-related claims (termination, interdiction and withheld dues) given the exclusive jurisdiction of the Employment and Labour Relations Court under Article 162(2)(a) and Article 165(5)(b) of the Constitution
- 2.Whether the respondent, a private entity, could be held liable for the wrongful arrest, false imprisonment and malicious prosecution of the 1st appellant
- 3.Whether the learned Judge erred in failing to award general, aggravated and special damages and to assess quantum
Key legal issues
#Jurisdiction of the High Court in employment and labour matters
The High Court lacked jurisdiction to determine the employment issues raised by the 1st appellant; such matters fall exclusively within the Employment and Labour Relations Court.
Article 162(2)(a) of the Constitution established the Employment and Labour Relations Court as a specialised court with the status of the High Court for employment and labour disputes. Article 165(5)(b) expressly excludes from the High Court's jurisdiction matters falling within the courts contemplated by Article 162(2). There is therefore no concurrence of jurisdiction, and the court must down its tools where jurisdiction is absent.
Liability of a private entity for malicious prosecution
The respondent could not be held responsible for malicious prosecution since it never had legal authority to prosecute and did not in fact prosecute the appellant.
The decision to prosecute lies with the authorities charged with setting the law of prosecution in motion, namely the office of the Director of Public Prosecutions. Private individuals or entities that merely lay complaints of a criminal nature to investigative authorities cannot be sued for malicious prosecution. The presence of the Attorney General and the initial complainant was also necessary to the suit.
Duty of counsel on appeals regarding written submissions
The Court deprecated counsel's failure to file written submissions as required by the Court's Practice Directions, and their leaving it to the Court to tailor High Court submissions to the appeal.
Both counsel submitted only orally, relying on High Court submissions. The Court expressed disappointment, finding a patent want of industry and effort, and described the approach as inimical to the high standards expected of the profession. This observation, though not dispositive, signals professional-conduct expectations before the Court.
Legal principles established
#- The High Court has no jurisdiction over employment and labour disputes, which fall within the exclusive jurisdiction of the Employment and Labour Relations Court established under Article 162(2)(a) of the Constitution.
- A claim for malicious prosecution cannot be sustained against private individuals or entities that merely lay complaints with investigative authorities; the decision to prosecute lies with the prosecution authorities.
- On a first appeal, the Court of Appeal is enjoined to re-evaluate, re-assess and re-analyze the entire evidence adduced before the trial court and determine whether the conclusions reached by the learned Judge are to stand.
Court orders
#- 1.Appeal dismissed
- 2.No order as to costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the principal judgment dismissing the appeal, holding that the High Court lacked jurisdiction over the employment-related claims and that no claim for malicious prosecution lay against a private entity that merely facilitated a complaint.
It follows that this appeal is devoid of merit and I would dismiss it but with no order as to costs.p. 3
Concurred wholly with the judgment of Kiage, JA in a brief separate opinion.
I have had the benefit of reading in draft the Judgment of Kiage, J.A. I wholly agree and concur with the contents.p. 3
- On appeal from
- High Court of Kenya at Kisumu
- HCCC No. 146 of 2010
- Jurisdiction invoked
- First appeal to the Court of Appeal under Article 164(1)(a) of the Constitution
Relief refused
#Declaration that the disciplinary process culminating in retirement due to public interest was void ab initio, injunctions, withheld salary dues, and general, exemplary, aggravated and special damages for wrongful arrest, false imprisonment and malicious prosecution
The High Court lacked jurisdiction over the employment matters, and no claim for malicious prosecution lies against a private entity which merely facilitated a complaint without authority to prosecute.
Costs
No order as to costs - the appeal was dismissed 'but with no order as to 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.
It follows that this appeal is devoid of merit and I would dismiss it but with no order as to costs.
As Makhandia, JA is of the same view, it is so ordered. This Judgment is rendered under Rule 32(3) as Odek, JA sadly expired before it could be delivered.
Jurisdiction is everything, and questions on it must be raised and addressed at the earliest since without it, the court must down its tools
The claim for malicious prosecution cannot be brought against private individuals or entities, who only lay complaints of a criminal nature to investigative authorities.
A Court's jurisdiction flows from either the Constitution or legislation or both. Thus, a Court of law can only exercise jurisdiction as conferred by the constitution or other written law.
Issues in the judgment
#The coram lists Odek, JA as a member of the bench, but the judgment states he died before delivery; the judgment nonetheless counts him within the panel and speaks of Asike-Makhandia and Kiage as the concurring judges.
The judgment is dated 31st January 2020 in the delivery clause although it refers to and quotes a 2019 first-appeal authority; no internal contradiction, but the stated panel count ('As Makhandia, JA is of the same view') leaves ambiguity as to whether Odek, JA concurred before his death.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Atabo (Suing as the legal representative of the Estate of the Late Sarah Atambo Esironi) v Land Registrar-Kitale & another (Environment and Land Case 54 (E049) of 2021) [2026] KEELC 1203 (KLR)[2026] KEELC 1203 (KLR)25 Feb 2026distinguished
- Kathingo & another v Musee & another (Civil Case 54 of 2014) [2025] KEMC 110 (KLR)[2025] KEMC 110 (KLR)19 May 2025applied
Cite this brief
#Cite this brief
Caselaw, "Gilbert Otieno Okite & another v Kenya Sugar Research Foundation [2020] KECA 900 (KLR)", Case Analysis (2020). Civil Appeal No. 93 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/900/eng@2020-01-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.