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Court of AppealDismissedCivil Appeal No. 93 of 2017· [2020] KECA 900 (KLR)

Gilbert Otieno Okite & 1 other v Kenya Sugar Research Foundation

Court of Appeal of Kenya
31 January 2020
ASAsike-MakhandiaKIKiageODOdek
1,972 words in judgment
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The bottom line

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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

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Executive summary

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This was a first appeal to the Court of Appeal at Kisumu against the judgment of the High Court (Chemitei, J, delivered by Majanja, J) which had dismissed the appellants' suit. The 1st appellant, a former laboratory technician with the respondent foundation, alleged that the respondent orchestrated his arrest, prosecution, conviction and subsequent termination of employment, and he sought declarations, injunctions, withheld salary dues and damages for wrongful arrest, false imprisonment and malicious prosecution, claims in which the 2nd appellant (his son) joined. The High Court dismissed the suit on two grounds: non-joinder of the Attorney General and the original complainant, and lack of jurisdiction over the employment matters. The Court of Appeal, in a judgment authored by Kiage, JA, concurred in by Asike-Makhandia, JA, and rendered under Rule 32(3) following the death of Odek, JA, affirmed the dismissal. It held that employment and labour disputes fall exclusively within the Employment and Labour Relations Court under Article 162(2)(a), the High Court being expressly excluded by Article 165(5)(b); jurisdiction being everything, a court without it must down its tools. On malicious prosecution, the Court held that no such claim lies against private individuals or entities that merely lay complaints with investigative authorities, the mandate to prosecute resting with the Director of Public Prosecutions. The Court also deprecated counsel's failure to file written submissions. The appeal was dismissed with no order as to costs.

Key legal issues

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01

Jurisdiction of the High Court in employment and labour matters

Holding

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.

Reasoning

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.

p. 2
02

Liability of a private entity for malicious prosecution

Holding

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.

Reasoning

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.

p. 3
03

Duty of counsel on appeals regarding written submissions

Holding

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.

Reasoning

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.

p. 2

Legal principles established

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  • 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

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  1. 1.Appeal dismissed
  2. 2.No order as to costs
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

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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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, "Gilbert Otieno Okite & 1 other v Kenya Sugar Research Foundation", 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.