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Court of AppealPartially AllowedCivil Appeal No. 94 of 2018· [2019] KECA 175 (KLR)

Barclays Bank of Kenya Limited v Julius Kiema Kenga & another [2019] KECA 175 (KLR)

Court of Appeal
14 November 2019
DMD.K. MusingaSKS. Gatembu KairuAMA.K. Murgor
3,722 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal threw out a Kshs.1.1 million malicious prosecution award, ruling that being acquitted of a criminal charge alone is not enough to sue your employer.

What this practically means

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Executive summary

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This Court of Appeal at Mombasa (Musinga, Gatembu Kairu and Murgor, JJ.A) allowed Barclays Bank of Kenya's appeal against a judgment of the Employment and Labour Relations Court (Makau, J.) which had awarded Julius Kiema Kenga Kshs.84,462.00 under his employment contract, Kshs.1,000,000.00 general damages for malicious prosecution against the Bank and the Attorney General jointly and severally, and Kshs.100,000.00 special damages for legal fees. The appeal arose from Kenga's 1996 termination after he was charged with four counts of fraudulent false accounting and later acquitted. The Court framed three issues: ELRC jurisdiction over the malicious prosecution claim; whether the tort was proved; and whether the reliefs were justified. On jurisdiction, the Court held the claim flowed directly from the employer-employee relationship and the dismissal, so the ELRC could entertain it, applying Paramount Bank Ltd v Vagvi Syed Qamara and Anthony Shiveka Alielo. On proof, however, the Court found the trial Judge had misdirected himself by inferring absence of reasonable and probable cause merely from the acquittal, and malice from the fact that Kenga was charged alone. Reiterating that acquittal alone cannot ground a malicious prosecution suit and that the burden lies squarely on the claimant, the Court held the ingredients of the tort were not established. The damages awards, including the unsupported profit-share award and the salary award offset against the claimant's loan, could not stand. The Court set aside the ELRC judgment, substituted an order dismissing the claim, and awarded the Bank costs of both the suit and the appeal.

Key legal issues

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01

Jurisdiction of the ELRC over a claim for malicious prosecution

Holding

The ELRC had jurisdiction because the malicious prosecution claim flowed directly from the employer-employee relationship and the dismissal.

Reasoning

Section 12 of the ELRC Act confers jurisdiction over disputes arising out of employment. The criminal charge leading to dismissal arose from alleged misconduct in the workplace. Following Paramount Bank Ltd v Vagvi Syed Qamara and Anthony Shiveka Alielo, where a malicious prosecution claim flows directly from dismissal, it may be entertained alongside the employment claim. The ground of appeal on jurisdiction therefore failed.

p. 4
02

Whether the ingredients of malicious prosecution were proved

Holding

The trial court erred: acquittal alone does not establish absence of reasonable and probable cause, and charging the claimant alone does not of itself prove malice; the claimant failed to prove the tort.

Reasoning

The Judge misdirected himself by treating non-conviction as proof of absence of reasonable and probable cause, and charging Kenga alone as proof of malice. Receipts were found in Kenga's home without Bank authority, giving the Bank a basis to report and investigate. Nothing showed an improper motive. The elements of the tort lie on the claimant, and they were not established.

03

Whether the reliefs awarded were justified

Holding

The award of Kshs.1,100,000.00 for malicious prosecution could not stand once the tort failed; the profit-share award lacked evidential support and the salary award was offset against the claimant's loan.

Reasoning

With malicious prosecution not proved, the entire Kshs.1,100,000.00 award fell away. The Kshs.21,261.00 profit share was pleaded but the supporting circular was never produced in evidence. The Kshs.63,201.00 salary claim failed because the termination letter showed monies due were applied to offset the claimant's loan. All reliefs were therefore unsustainable.

p. 5

Legal principles established

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  • A claim for malicious prosecution arising directly from the dismissal of an employee may be entertained by the Employment and Labour Relations Court alongside the employment claim.
  • Acquittal on a criminal charge is, in itself, not sufficient basis to ground a suit for malicious prosecution.
  • A claimant in malicious prosecution bears the onus of proving all the ingredients of the tort, including lack of reasonable and probable cause and malice.

Court orders

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  1. 1.Set aside the total award of Kshs.1,100,000.00 general and special damages for malicious prosecution
  2. 2.Set aside the judgment of the Employment and Labour Relations Court in Cause No. 138 of 2015 and substitute an order dismissing the 1st respondent's claim
  3. 3.Costs of the suit before the ELRC awarded to the appellant
  4. 4.Costs of the appeal awarded to the appellant

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 162(2)
  • Constitution of Kenya, 2010Article 165
  • Employment and Labour Relations Court ActSection 4
  • Employment and Labour Relations Court ActSection 12
  • Employment and Labour Relations Court ActSection 12(3)(viii)

Cases cited (15)

  • Kenya Flourspar Company Limited vs. William Mutua Maseve & anor
    [2014] eKLR
  • Nzoia Sugar Company Ltd vs. Fungututi
    [1988] KLR 399
  • Kenya Power & Lighting Co. Ltd vs. Maurice Otieno Odeyo & 2 others
    [2017] eKLR
  • Evans Gundo vs. Naftali Sule
    [2002] eKLR
  • Law Society of Kenya Nairobi Branch vs. Malindi Law Society & 6 others
    [2017] eKLR
  • Nyamogo & Nyamogo Advocates vs. Barclays Bank of Kenya
    [2015] eKLR
  • Mbowa vs. East Mengo District Administration
    [1972] E.A 352
  • Paramount Bank Limited vs. Vaqvi Syed Qamara & another
    [2017] eKLR
  • Celina Atieno Ogutu vs. Undugu Society of Kenya
    [2019] eKLR
  • National Oil Corporation vs. John Mwangi Kaguenyu & 2 others
    [2019] eKLR
  • Mbogo & another vs. Shah
    [1968] EA 98
  • Selle vs. Associated Motor Boat Company
    [1968] E.A. 123
  • Anthony Shiveka Alielo vs. Kenya Post Office Savings Bank & another
    [2019] eKLR
  • Murunga vs. Attorney General
    [1979] KLR 138
  • Robert Okeri Ombeka vs. Central Bank of Kenya
    [2015] eKLR
On appeal from
Employment & Labour Relations Court at Mombasa
ELRCC No. 138 of 2015
Jurisdiction invoked
First appeal to the Court of Appeal (appellate jurisdiction); underlying ELRC jurisdiction under Sections 4 and 12 of the ELRC Act established pursuant to Article 162(2) of the Constitution

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (5)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Barclays Bank of Kenya Limited v Julius Kiema Kenga & another [2019] KECA 175 (KLR)", Case Analysis (2019). Civil Appeal No. 94 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/175/eng@2019-11-14

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