David Macharia & 2 others v Teachers Service Commission & another [2018] KEELRC 2128 (KLR)
The bottom line
#The Employment Court dismissed three ex-TSC workers' claims, holding that an employer who merely reports a crime to police cannot be liable for malicious prosecution without proof of malice.
What this practically means
#Executive summary
#Key legal issues
#Whether the arrest, charge and prosecution of the Claimants was malicious
No - the 1st Respondent had reasonable cause to report the theft, and prosecution was the independent decision of the police
The court found the TSC had reasonable cause to report the theft of Kshs.21,205,650. Malice in fact must be proved showing spite, ill-will or improper motive, which the Claimants did not establish on a balance of probabilities. Once a report is made to police, the decision to investigate and prosecute is independent of the reporter, so the TSC bore no blame for the arrest and prosecution.
Whether the dismissal of the Claimants was lawful and fair
Yes - valid reasons existed and a fair procedure was followed under the repealed Employment Act Cap 226 and TSC Regulations
The court held that a criminal charge does not bar disciplinary proceedings, and an acquittal does not bind an internal disciplinary tribunal which applies a balance-of-probabilities standard. The Claimants were given interdiction letters, notice, opportunity to respond in writing and audience before the disciplinary committee, satisfying Regulation 10 of the TSC Code and the repealed Employment Act.
Whether the Claimants are entitled to the reliefs sought
No - general, aggravated and special damages were not proven and were dismissed
Following the findings on liability, general and aggravated damages fell away. On special damages, credible testimony showed the Claimants were paid half salary during interdiction with the balance paid belatedly upon acquittal, and that they received their provident and superannuation funds with no interest payable under the regulations; the claimed amounts were therefore not proven.
Legal principles established
#- Malice in fact must be proved to establish malicious prosecution
- A person who merely reports a crime to the police is not liable for malicious prosecution as prosecution is an independent police decision
- An employee's criminal charge does not bar an employer from instituting disciplinary proceedings; an internal disciplinary tribunal is not held to the same standards as a court of law
- The Employment Act, 2007 does not apply retrospectively to terminations before its operationalization
Court orders
#- 1.General and aggravated damages claims dismissed
- 2.Special damages claims dismissed
- 3.Entire suit dismissed with no order as to costs
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment and Labour Relations Court Act over the employment dispute
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "David Macharia & 2 others v Teachers Service Commission & another [2018] KEELRC 2128 (KLR)", Case Analysis (2018). Cause No. 346 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/2128/eng@2018-04-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.