Julius Kiema Kenga v Barclays Bankk of Kenya Limited & another [2015] KEELRC 152 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether termination under clause A5(d) of the CBA breached the employment contract
No breach; the 1st respondent lawfully exercised its contractual right to terminate on one month's salary in lieu of notice
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.
Liability for false imprisonment
1st respondent not liable (no control over police); claim against 2nd respondent time barred
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.
Liability for malicious prosecution
Both respondents jointly liable; all ingredients proved
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.
Quantum of damages
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
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.
Legal principles established
#- 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
#- 1.Dismissal of the claim for damages for breach of the employment contract
- 2.Dismissal of the claim for medical expenses incurred after termination
- 3.Award of Kshs 63,201 being salary for February to May 1996, payable by the 1st respondent
- 4.Award of Kshs 21,261, payable by the 1st respondent
- 5.Award of Kshs 1,000,000 general damages for malicious prosecution
- 6.Award of Kshs 100,000 special damages for legal fees, the tort awards payable by the respondents jointly and severally
- 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
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.