National Cereals And Produce Board vMariamu Abubakar Ireri & another [2012] KECA 178 (KLR)
The bottom line
#Kenya's Court of Appeal threw out a malicious prosecution award, confirming that reporting a genuine loss to police does not make an employer liable for the prosecution.
What this practically means
#Executive summary
#Key legal issues
#Whether the appellant instituted the criminal prosecution
The appellant only reported the loss to police; the police investigated, arrested and charged, so the prosecution was a public prosecution by the State.
The Court re-evaluated the evidence of PW6 and the investigating officer Cpl. Kiprono, who stated he decided to charge the accused. The appellant's security officer merely conveyed suspects to the police at the request of IP Kemboi. The prosecution was a public one sanctioned by the Attorney General and outside the appellant's control; the appellant could not direct or withdraw the charge.
Whether the report to the police was actuated by malice
No malice: the appellant suffered a genuine loss of some 14,750 gunny bags and had a duty to report it; the deceased's conduct as Stores Clerk made him a legitimate suspect.
A prima facie case had been found at the close of the prosecution case in the criminal trial, so the complaint was not frivolous. Acquittal did not mean the deceased could not have been a suspect. The trial magistrate's remark that accused persons had been 'sacrificed' carried little weight.
Whether the summary dismissal was unlawful
The dismissal was lawful: the deceased was given 15 days to show cause and did not respond, and the applicable Articles 37.4 and 37.5 permitted summary dismissal.
The suspension letter required the deceased to show cause within 15 days why he should not be dismissed; there was no evidence he responded. On proper interpretation of the terms of service, summary dismissal was permissible in the circumstances.
Whether unpleaded awards (general damages and salary in lieu of notice) could stand
They could not: damages beyond what is pleaded and canvassed cannot be awarded.
Both counsel conceded the Kshs.500,000 award exceeded the pleaded Kshs.200,000 and that the Kshs.11,080 award was unpleaded. The Court held a judge cannot award whatever he feels proper where the claim was not canvassed, distinguishing Odd Jobs v Rubi. In any event, the foundation of the awards had fallen away.
Legal principles established
#- A plaintiff in malicious prosecution must prove all four elements: institution by the defendant, favourable termination, absence of reasonable and probable cause, and malice.
- An employer who merely reports a genuine loss to the police, which then independently investigates and prosecutes, does not thereby institute the prosecution and is not liable for malicious prosecution.
- Reporting a genuine loss of property to the police is a legal and moral duty of the employer and cannot found a claim of malice.
- A court cannot award damages for claims that were neither pleaded nor canvassed before it.
Court orders
#- 1.Appeal allowed
- 2.Judgment and decision of the High Court set aside
- 3.Respondent's case in the High Court dismissed
- 4.Costs of the appeal and of the High Court to be paid to the appellant
- 5.Amount already paid to the respondent's estate, if any, to be refunded
- On appeal from
- High Court of Kenya at Mombasa
- H.C.C.C. No. 152 of 1997
- Jurisdiction invoked
- First appeal to the Court of Appeal under the Civil Procedure Act/rules (judgment does not cite a specific constitutional provision)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "National Cereals And Produce Board vMariamu Abubakar Ireri & another [2012] KECA 178 (KLR)", Case Analysis (2012). Civil Appeal 230 of 2008. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2012/178/eng@2012-03-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.