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ELRCPartially AllowedCause No. 138 of 2015· [2015] KEELRC 152 (KLR)

Julius Kiema Kenga v Barclays Bankk of Kenya Limited & another [2015] KEELRC 152 (KLR)

Employment and Labour Relations Court (styled 'Employment of Labour Relations Court') at Mombasa
4 December 2015
2,066 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court awarded a former bank cashier KShs 1.18 million for malicious prosecution, even though his dismissal itself was lawful.

What this practically means

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Executive summary

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The claimant, a foreign exchange cashier employed by the 1st respondent bank since 1988, was arrested in February 1996, suspended, and terminated by one month's notice under clause A5(d) of the CBA after foreign currency purchase and sale receipts were found in his house. He was charged with fraudulent false accounting in CMCRC No 812 of 1996 and acquitted on 11.12.1998, then sued in the High Court in December 1999 for false imprisonment, malicious prosecution and breach of contract. The court found no breach of the employment contract: the bank lawfully exercised its right under clause A5(d) to terminate on one month's salary in lieu, which was applied to the claimant's outstanding loan. On false imprisonment, the bank had no control over the claimant's police detention, and the claim against the 2nd respondent was time barred, having accrued on 20.2.1996 with suit filed in December 1999. On malicious prosecution, however, both respondents were held jointly liable: the bank's security officer and the police investigator had admitted during the criminal proceedings that senior bank officers authorized the deletion of the transactions, yet charges were pressed against the claimant alone without reasonable and probable cause and with malice, and the prosecution terminated in his favour. The claimant was awarded Kshs 1,000,000 general damages and Kshs 100,000 special damages for legal fees jointly and severally against both respondents, plus unchallenged contractual sums of Kshs 63,201 and Kshs 21,261 from the 1st respondent only. Medical expenses were disallowed. Total judgment: Kshs 1,184,462, plus costs and interest from filing.

Key legal issues

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01

Whether termination under clause A5(d) of the CBA breached the employment contract

Holding

No breach; the 1st respondent lawfully exercised its contractual right to terminate on one month's salary in lieu of notice

Reasoning

The termination letter shows the bank did not summarily dismiss the claimant but reduced the sanction to termination under clause A5(d), paying one month's salary in lieu, which was applied to the claimant's outstanding loan. The claimant did not deny the loan or the set-off. The court thus found full compliance with the CBA and no breach on a balance of probability.

p. 2
02

Liability for false imprisonment

Holding

1st respondent not liable (no control over police); claim against 2nd respondent time barred

Reasoning

The bank had no control over the claimant's detention; the police alone decided bond and arraignment within 24 hours. Against the 2nd respondent, the cause of action for false imprisonment arose on 20.2.1996 and suit filed in December 1999 exceeded the 12-month limitation period.

p. 3
03

Liability for malicious prosecution

Holding

Both respondents jointly liable; all ingredients proved

Reasoning

PW6 (bank security officer) and PW7 (investigating officer) admitted during the criminal proceedings that bank officers had authorized the deletion of the transactions, yet pressed charges against the claimant alone. The prosecution lacked reasonable and probable cause and was actuated by malice, and terminated in the claimant's favour on 11.12.1998.

p. 3
04

Quantum of damages

Holding

Kshs 1,000,000 general damages for malicious prosecution and Kshs 100,000 special damages for legal fees; unchallenged contractual sums of Kshs 63,201 and Kshs 21,261 allowed

Reasoning

The court considered that the tort was committed some 20 years earlier in fixing general damages. The special damages for legal fees and the contractual salary claims were not disproved by the defence evidence. Medical expenses post-termination were disallowed as fringe benefits end with employment.

p. 4

Legal principles established

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  • Elements of malicious prosecution: plaintiff must prove the prosecution was instituted by the defendant, terminated in his favour, was instituted without reasonable and probable cause, and was actuated by malice

Court orders

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  1. 1.Dismissal of the claim for damages for breach of the employment contract
  2. 2.Dismissal of the claim for medical expenses incurred after termination
  3. 3.Award of Kshs 63,201 being salary for February to May 1996, payable by the 1st respondent
  4. 4.Award of Kshs 21,261, payable by the 1st respondent
  5. 5.Award of Kshs 1,000,000 general damages for malicious prosecution
  6. 6.Award of Kshs 100,000 special damages for legal fees, the tort awards payable by the respondents jointly and severally
  7. 7.Judgment entered for the claimant in the total sum of Kshs 1,184,462 subject to apportionment of liability, plus costs and interest from the date of filing suit

Authorities

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Cases cited (1)

  • Zablon Mwaluma Kadori vs National Cereals & Produce Board
    [2005] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over the employment claim and related tort claims (suit transferred from the High Court, filed 10.12.1999)

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, "Julius Kiema Kenga v Barclays Bankk of Kenya Limited & another [2015] KEELRC 152 (KLR)", Case Analysis (2015). Cause No. 138 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/152/eng@2015-12-04

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