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ELRCDismissedCause No. 346 of 2015· [2018] KEELRC 2128 (KLR)

David Macharia & 2 others v Teachers Service Commission & another [2018] KEELRC 2128 (KLR)

Employment and Labour Relations Court
6 April 2018
2,597 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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Three former Clerical Officers in the Teachers Service Commission cash office sued the TSC and the Attorney General claiming terminal benefits of Kshs.4,376,491.10, general and aggravated damages for malicious prosecution and false imprisonment, and special damages. They had been interdicted on 30 June 1994 following the reported theft of Kshs.21,205,650, charged in Criminal Case No. 2713 of 1994, acquitted on 30 January 2002, and thereafter dismissed from service by letter dated 3 September 2002 after appearing before a TSC disciplinary committee. The Respondents denied the suit, asserting valid reasons and due process under the repealed Employment Act Cap 226 and TSC Regulations, and relying on authorities that the Employment Act 2007 is not retrospective. The court framed three issues: malice of the prosecution; lawfulness and fairness of the dismissal; and entitlement to relief. On the first, the court held the TSC had reasonable cause to report the theft and that prosecution was an independent police decision, with no malice proven. On the second, it held that a criminal charge does not bar disciplinary proceedings, an acquittal does not bind an internal tribunal applying the balance of probabilities, and fair procedure was followed. On relief, general and aggravated damages fell away and special damages were not proven, half salary during interdiction having been paid and provident and superannuation funds received. The entire suit was dismissed with no order as to costs, the court finding it unconscionable to award costs against the long-unemployed Claimants.

Key legal issues

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01

Whether the arrest, charge and prosecution of the Claimants was malicious

Holding

No - the 1st Respondent had reasonable cause to report the theft, and prosecution was the independent decision of the police

Reasoning

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.

02

Whether the dismissal of the Claimants was lawful and fair

Holding

Yes - valid reasons existed and a fair procedure was followed under the repealed Employment Act Cap 226 and TSC Regulations

Reasoning

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.

p. 4
03

Whether the Claimants are entitled to the reliefs sought

Holding

No - general, aggravated and special damages were not proven and were dismissed

Reasoning

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.

p. 5

Legal principles established

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  • 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

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  1. 1.General and aggravated damages claims dismissed
  2. 2.Special damages claims dismissed
  3. 3.Entire suit dismissed with no order as to costs

Authorities

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Legislation

  • Teachers Service Commission ActCap 212
  • Employment ActCap 226 (repealed), section 17
  • Employment Act, 2007
  • Regulation of Wages and Conditions of Employment ActCap 226 (now repealed)
  • TSC Code of Regulations for Secretarial StaffRegulation 10

Cases cited (8)

  • Agnes Murugi v Barclays Bank of Kenya
    (2013)
  • Jeremian Ojwang Ojak v Central Bank of Kenya
    2012
  • Kenya Ports Authority v Festus Kipkorir
    Civil Appeal No. 1 of 2004
  • Anthony Mkala Chitavi vs Malindi Water & Sewerage Company Limited
    [2013]
  • Katerrega vs Attorney General
    (1973) E.A 289
  • Kagane vs Attorney General
    (1969) EA 643
  • Nyanga vs Mucheke
    Civil Appeal No. 59 of 1987 - Nyeri
  • Constantine Simati v Teachers Service Commission and another
    [2011] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment and Labour Relations Court Act over the employment dispute

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, "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.