Jackson Kimani Waweru & 5 others v Attorney General & 3 others [2016] KEELRC 624 (KLR)
The bottom line
#Winning on one issue doesn't guarantee full compensation: the court awarded only unpaid suspension wages because the other claims lacked proof and the lawyers missed filing deadlines.
What this practically means
#Executive summary
#Key legal issues
#Whether the arrest and prosecution of the Claimants was malicious
The claim failed; the Claimants did not prove all the essential elements of malicious prosecution or false detention.
The Claimants were charged with taking part in an unlawful assembly. The trial court found the charge defective under section 137(f) of the Criminal Procedure Code and acquitted them under section 210, police evidence showing they were peaceful. Although the prosecution collapsed, the Claimants did not prove malice, absence of reasonable and probable cause and the other essential elements of the torts pleaded.
Whether the Claimants were defamed by the arrest and prosecution
The defamation claim was dismissed for want of pleading, particulars and evidence.
The court restated the definition of defamation but found the Claimants had not pleaded the required particulars of defamation, led no evidence of the alleged defamatory statements, and did not address the head of claim in submissions. It was therefore unsupported by evidence and liable to dismissal.
Whether the suspensions of the Claimants were unlawful
The suspensions were unlawful both under the applicable statutory regulations and the collective bargaining agreement.
Under Regulation 25 of the Public Service Commission (Local Authority Officers) Regulations 2007, suspension required a conviction for a serious criminal offence or pending dismissal proceedings, neither of which existed. Under clause 30 of the CBA, suspension required a finding of guilt or criminal proceedings involving the council's interest, could not exceed three months, and no nexus between the charges and the council's interest was shown. The suspensions also outlasted the three-month limit.
Appropriate remedies
The only viable remedy was payment of wages accrued during suspension up to dates of separation, in terms of the consent of 17 September 2010.
Reinstatement or lifting of suspensions would be futile as the Claimants had left employment by transfer, death or dismissal and had not challenged their dismissals. The court therefore confined relief to computation and payment of wages accrued up to the dates of separation, consistent with the consent order of 17 September 2010, which it found vague.
Legal principles established
#- To succeed in malicious prosecution or false imprisonment, a claimant must prove that the respondent set the law in motion on a criminal charge without reasonable or probable cause, acted maliciously, and that the proceedings terminated in the claimant's favour.
- A suspension in employment must be underpinned by statute or contract to be lawful.
- Defamation occurs when a published statement tends to lower a person's reputation in the estimation of right thinking members of society.
Court orders
#- 1.The 3rd and 4th Respondents to compute and pay the Claimants wages accrued/due up to dates of separation
- 2.All other reliefs dismissed
- 3.Claimants denied costs
- Jurisdiction invoked
- Suit transferred from the Chief Magistrates Court to this Court for hearing and determination; employment and labour relations cause
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Jackson Kimani Waweru & 5 others v Attorney General & 3 others [2016] KEELRC 624 (KLR)", Case Analysis (2016). Cause No 490 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/624/eng@2016-09-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.