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ELRCPartially AllowedCause No 490 of 2014· [2016] KEELRC 624 (KLR)

Jackson Kimani Waweru & 5 others v Attorney General & 3 others [2016] KEELRC 624 (KLR)

Employment and Labour Relations Court
7 October 2016
2,098 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~8 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The Claimants, former employees of the Municipal Council of Naivasha, sued the Attorney General, Commissioner of Police, and (after amendment) the Nakuru County Public Service Board and Nakuru County Government, alleging defamation, false detention, malicious prosecution and unlawful suspension following their arrest on 12 January 2009 for taking part in an alleged unlawful assembly at the council compound. Two claimants withdrew after reinstatement; one deceased claimant was substituted. The cause was transferred from the Chief Magistrates Court to the Employment and Labour Relations Court at Nakuru. The court framed four issues: malice of the arrest and prosecution, defamation, lawfulness of the suspensions, and remedies. It found the criminal charge defective and the Claimants acquitted, but held that the essential elements of malicious prosecution and false detention were not proved and that the defamation claim was unsupported by particulars or evidence; both heads were dismissed. The court held the suspensions unlawful because they did not comply with Regulation 25 of the Public Service Commission (Local Authority Officers) Regulations 2007, which required a conviction or dismissal proceedings, nor clause 30 of the collective bargaining agreement, which limited suspension to three months and required guilt or criminal proceedings involving the council's interest. As the Claimants had left employment by transfer, death or dismissal without challenging the dismissals, reinstatement would be futile. The court ordered the 3rd and 4th Respondents to compute and pay wages accrued up to the dates of separation, dismissed the other reliefs, and denied the Claimants costs for filing submissions outside agreed timelines.

Key legal issues

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01

Whether the arrest and prosecution of the Claimants was malicious

Holding

The claim failed; the Claimants did not prove all the essential elements of malicious prosecution or false detention.

Reasoning

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.

p. 3
02

Whether the Claimants were defamed by the arrest and prosecution

Holding

The defamation claim was dismissed for want of pleading, particulars and evidence.

Reasoning

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.

p. 4
03

Whether the suspensions of the Claimants were unlawful

Holding

The suspensions were unlawful both under the applicable statutory regulations and the collective bargaining agreement.

Reasoning

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.

p. 4
04

Appropriate remedies

Holding

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.

Reasoning

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.

p. 5

Legal principles established

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  • 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

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  1. 1.The 3rd and 4th Respondents to compute and pay the Claimants wages accrued/due up to dates of separation
  2. 2.All other reliefs dismissed
  3. 3.Claimants denied costs

Authorities

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Legislation

  • Constitution of KenyaChapter 2, Section 6(1); Chapter 11, Section 176(1) (as cited in the preliminary objection)
  • Penal Codesection 79
  • Criminal Procedure Codesection 137(f)
  • Criminal Procedure Codesection 210
  • Local Government Act
  • Local Government Regulations
  • Municipal Council of Naivasha Employment Regulations
  • Public Service Commission (Local Authority Officers) Regulations, 2007 (Legal Notice No. 72 of 2007)Regulations 24 and 25
Jurisdiction invoked
Suit transferred from the Chief Magistrates Court to this Court for hearing and determination; employment and labour relations cause

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, "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.