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ELRCPartially AllowedFormerly High Court of Kenya at Kisii Civil Suit No. 56 of 2008· [2018] KEELRC 393 (KLR)

George James Siro v Credit Bank Limited & another [2018] KEELRC 393 (KLR)

Employment and Labour Relations Court
6 December 2018
3,900 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan bank must pay its former manager over Kshs.1.1 million for unlawful dismissal, but claims of malicious prosecution, defamation and false imprisonment failed.

What this practically means

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Executive summary

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The plaintiff, a former Branch Manager of Credit Bank Limited, Kisii, sued the bank and the Attorney General claiming general damages for malicious prosecution, defamation, wrongful arrest and unlawful detention following a criminal charge over a cash shortage of Kshs.3,086,000 discovered in July 2006. He also claimed special damages of Kshs.38,510,182.70 arising from his summary dismissal, including salary until retirement, pension and 12 months' compensation. He was arrested on 13th July 2006, charged in Kisii CMCC Criminal Case No. 1343 of 2006, acquitted under section 210 of the Criminal Procedure Code, and dismissed by letter dated 30th April 2007 effective from 13th July 2006. The court framed six issues and found that reasonable and probable cause existed for the prosecution since the bank lost money under the plaintiff's watch and he delayed reporting; malice was not proved. The defamation claim failed for want of evidence that others construed the words as defamatory, and the false imprisonment claim was indistinctly pleaded and time-barred against the Attorney General. However, the court held the summary dismissal unlawful because the alleged wilful carelessness was not proved, reducing it to normal termination with notice. Judgment was entered against the 1st defendant for Kshs.1,149,425.70, comprising unpaid salary during suspension (Kshs.739,080), one month's salary in lieu of notice (Kshs.148,319) and 53 leave days (Kshs.262,026.70), with interest at court rates from filing suit and costs payable by the 1st defendant.

Key legal issues

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01

Malicious prosecution

Holding

Claim failed; reasonable and probable cause existed as the bank lost money under the plaintiff's watch and he delayed reporting, and malice was not established

Reasoning

The plaintiff had a duty as Branch Manager to safeguard the bank's assets. Internal investigations found him and colleagues culpable, justifying the report to police. The complaint was genuine and based on investigative findings, negating both absence of probable cause and malice. An acquittal under section 210 does not per se establish malice or absence of reasonable and probable cause.

p. 5
02

Wrongful arrest and false imprisonment

Holding

Claim failed; not distinctly proved and time-barred against the Attorney General

Reasoning

The plaintiff gave scant evidence beyond stating he was arrested. Citing Kyalo v KTDA, distinct causes of action must each be proved distinctly on a balance of probabilities. Further, the suit was filed more than 12 months after release from custody, so the false imprisonment claim against the Attorney General was barred under section 3(1) of the Public Authorities Limitations Act.

p. 5
03

Defamation

Holding

Claim failed; no proof the words were construed as defamatory by the audience

Reasoning

Defamation requires proof that words tended to lower the plaintiff's reputation or cause him to be shunned, and that they were published and construed as defamatory rather than merely abusive. The plaintiff called no witnesses to testify how the prosecution affected how others viewed him, and cannot be his own witness on the perception of others.

p. 6
04

Justification of summary dismissal

Holding

Summary dismissal was unlawful as wilful carelessness/negligence was not proved; converted to normal termination with notice

Reasoning

The dismissal was based on alleged wilful carelessness and negligence causing the cash loss, but that was not proved at the hearing. Under the old Employment Act the court could not award unfair termination compensation, but the plaintiff was entitled to unpaid salary for the suspension period, notice pay, and earned leave.

p. 6

Legal principles established

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  • The tort of malicious prosecution requires proof that the prosecution was initiated by the defendant, terminated in the plaintiff's favour, absence of reasonable and probable cause, and malice
  • A dismissal letter cannot be backdated; salary is due between suspension and the actual date of dismissal
  • Under the repealed Employment Act No. 2 of 1976 employers had no obligation to observe natural justice in terminations and could terminate at will

Court orders

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  1. 1.Judgment entered for the plaintiff against the 1st defendant in the total sum of Kshs.1,149,425.70
  2. 2.Kshs.739,080.00 awarded as salary withheld during suspension
  3. 3.Kshs.148,319.00 awarded as one month's salary in lieu of notice
  4. 4.Kshs.262,026.70 awarded for 53 leave days
  5. 5.Decretal sum to attract interest at court rates from date of filing suit
  6. 6.1st defendant to pay the plaintiff's costs of the suit

Authorities

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Legislation

  • Penal CodeSection 281
  • Criminal Procedure CodeSection 210
  • Employment ActNo. 2 of 1976 (repealed)
  • Employment Act2007
  • Public Authorities Limitations of Actions ActSection 3(1)

Cases cited (7)

  • Stephen Gachau Githaiga & Another v Attorney General
    [2015] eKLR
  • Daniel Waweru Njoroge & 17 Others v Attorney General
    [2015] eKLR
  • John Ndeto Kyalo -vs- Kenya Tea Development Authority and the Hon. Attorney General
    High Court (Mombasa) Civil Case No. 502 of 1999 [2005] eKLR
  • Joseph Njogu Kamunge v Charles Muriuki Gachari
    [2016] eKLR
  • Miguna Miguna v Standard Group Limited & 4 others
    [2016] eKLR
  • KENYA REVENUE AUTHORITY -V- MENGINYA SALIM MURGANI
  • EZEKIEL NYANGOYA OKEMWA -V- KENYA MARINE AND FISHERIES RESEARCH INSTITUTE
Jurisdiction invoked
Transferred from the High Court at Kisii by order of Okwany J dated 8th February 2016

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, "George James Siro v Credit Bank Limited & another [2018] KEELRC 393 (KLR)", Case Analysis (2018). Formerly High Court of Kenya at Kisii Civil Suit No. 56 of 2008. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/393/eng@2018-12-06

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