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ELRCDismissedNot stated in the judgment as provided

Patrick Saidi Musyoka v Kenya Roads Board & another [2019] KEELRC 447 (KLR)

Employment and Labour Relations Court
25 October 2019
1,057 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court dismissed a worker's claim filed nearly 8 years after dismissal, confirming employment and tort claims must be filed within three years.

What this practically means

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Executive summary

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The Claimant, terminated in February 2009 following a criminal prosecution by the 1st Respondent's complaint, was convicted in Chief Magistrates' Criminal Case 1894 of 2008 but acquitted on appeal in High Court Criminal Appeal No. 58 of 2015 on 14th December 2016. He then sued for compensation for unlawful termination, malicious prosecution and libel, the suit having been transferred from the High Court to the Employment and Labour Relations Court. The 1st Respondent filed a Chamber Summons seeking to strike itself out and to have the suit dismissed as time barred and for want of cause of action. The court applied section 90 of the Employment Act, requiring employment claims to be filed within three years, and following The Attorney General v Andrew Maina Githinji held that pending criminal proceedings are no bar to civil proceedings and did not amount to a continuing injury. The claim for unfair termination, filed almost eight years after termination, was therefore statute barred. The malicious prosecution claim, while properly maintainable against a complainant alleged to have acted with malice, was also subject to the three-year limitation period for torts. The libel claim failed against the Applicant because the alleged defamatory statement was published by Taifa Leo, which was not joined. The court struck out the 1st Defendant from the Plaint and dismissed the entire claim as statute barred, with no orders for costs.

Questions the Court framed

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

  1. 1.Whether the claim is time barred under section 90 of the Employment Act
  2. 2.Whether the subsistence and subsequent setting aside of criminal proceedings constituted a continuing injury extending the limitation period
  3. 3.Whether there is a reasonable cause of action against the 1st Respondent for malicious prosecution
  4. 4.Whether a claim for libel lies against the Applicant where the alleged defamatory statement was published by a newspaper

Key legal issues

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01

Limitation under section 90 of the Employment Act

Holding

The claim for compensation for unlawful termination was time barred as it was filed almost 8 years after termination on 18th February 2009, exceeding the three-year period; criminal proceedings did not constitute a continuing injury tolling limitation

Reasoning

The court applied section 90 of the Employment Act, which requires suits arising from employment to be commenced within three years. Relying on the Attorney General v Andrew Maina Githinji line of authority, it held that pending criminal proceedings are no bar to civil proceedings, so the Claimant was obliged to file within three years of termination. The alleged continuing injury argument failed because the claim for unfair termination accrued at termination, while only a malicious prosecution claim depends on acquittal.

p. 2
02

Cause of action against the complainant for malicious prosecution

Holding

A complainant who drives a prosecution can be sued for malicious prosecution; the application to strike out on this ground was rejected

Reasoning

The Applicant argued it neither published defamatory matter nor instituted the criminal proceedings. The court held that malicious prosecution suits may target those in charge of instituting and prosecuting criminal matters as well as the complainant where the complaint was driven by malice. The Claimant alleged the Applicant made the complaint knowing he was not the custodian of the cheque book and had no role in the fraud.

p. 2
03

Libel claim against the wrong party

Holding

The libel claim could not stand against the Applicant because the alleged defamatory statement was published by Taifa Leo, which was not joined

Reasoning

One ingredient of libel is publication by the defendant. The pleadings showed the defamatory statement was published by Taifa Leo, so the Newspaper was the proper party, not the Applicant. However, the claim was ultimately dismissed on limitation grounds since malicious prosecution and defamation are torts subject to the three-year limitation period under the Limitation of Actions Act.

p. 2

Legal principles established

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  • The subsistence of criminal proceedings is not a bar to civil proceedings, and a claim for compensation for unfair termination must be filed within three years of termination under section 90 of the Employment Act
  • A claim for malicious prosecution depends on the acquittal of the accused and must be instituted within three years under the Limitation of Actions Act
  • Suits for malicious prosecution may be brought against those in charge of instituting and prosecuting criminal matters as well as the complainant where malice is alleged

Court orders

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  1. 1.The 1st Defendant/Applicant is struck out from the Plaint dated 30th January 2017
  2. 2.The entire claim is dismissed as statute barred and unsustainable against either of the respondents
  3. 3.No orders for costs

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment claims; suit transferred from the High Court on grounds of jurisdiction

Relief refused

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Claim for compensation for unlawful termination of employment

Filed almost 8 years after termination, beyond the 3-year period under section 90 of the Employment Act

p. 2

Claim for libel against the Applicant

The alleged defamatory statement was published by Taifa Leo, which was not joined as a party

p. 2

Costs

No orders for costs - each party to bear own costs in effect; the judgment states 'dismissed with no orders for costs'

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.

Notwithstanding the provisions of section 4(1) of the Limitation of Actions Act (Cap. 22), no civil action or proceedings based or arising out of this Act or a contract of service in general shall lie or be instituted unless it is commenced within three years next after the act, neglect or default complained or in the case of continuing injury or damage within twelve months next after the cessation thereof.
p. 2Section 90 Employment Act - limitation period
This court and the Court of Appeal have pronounced the legal position that the subsistence of criminal proceedings was not a bar to civil proceedings
p. 2Criminal proceedings no bar to civil suit
From the foregoing the entire claim is statute barred and thus unsustainable against either of the respondents. The same is accordingly dismissed with no orders for costs.
p. 2Final orders - dismissal

Issues in the judgment

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minor

The judgment states the Claimant's employment was terminated on 18th January 2009 in the Application summary but 18th February 2009 in submissions and the court's determination

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Patrick Saidi Musyoka v Kenya Roads Board & another [2019] KEELRC 447 (KLR)", Case Analysis (2019). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/447/eng@2019-10-25

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