Patrick Saidi Musyoka v Kenya Roads Board & another [2019] KEELRC 447 (KLR)
The bottom line
#Kenya's Employment Court dismissed a worker's claim filed nearly 8 years after dismissal, confirming employment and tort claims must be filed within three years.
What this practically means
#Executive summary
#Key legal issues
#Limitation under section 90 of the Employment Act
The claim for compensation for unlawful termination was time barred as it was filed almost 8 years after termination on 18th February 2009, exceeding the three-year period; criminal proceedings did not constitute a continuing injury tolling limitation
The court applied section 90 of the Employment Act, which requires suits arising from employment to be commenced within three years. Relying on the Attorney General v Andrew Maina Githinji line of authority, it held that pending criminal proceedings are no bar to civil proceedings, so the Claimant was obliged to file within three years of termination. The alleged continuing injury argument failed because the claim for unfair termination accrued at termination, while only a malicious prosecution claim depends on acquittal.
Cause of action against the complainant for malicious prosecution
A complainant who drives a prosecution can be sued for malicious prosecution; the application to strike out on this ground was rejected
The Applicant argued it neither published defamatory matter nor instituted the criminal proceedings. The court held that malicious prosecution suits may target those in charge of instituting and prosecuting criminal matters as well as the complainant where the complaint was driven by malice. The Claimant alleged the Applicant made the complaint knowing he was not the custodian of the cheque book and had no role in the fraud.
Libel claim against the wrong party
The libel claim could not stand against the Applicant because the alleged defamatory statement was published by Taifa Leo, which was not joined
One ingredient of libel is publication by the defendant. The pleadings showed the defamatory statement was published by Taifa Leo, so the Newspaper was the proper party, not the Applicant. However, the claim was ultimately dismissed on limitation grounds since malicious prosecution and defamation are torts subject to the three-year limitation period under the Limitation of Actions Act.
Legal principles established
#- The subsistence of criminal proceedings is not a bar to civil proceedings, and a claim for compensation for unfair termination must be filed within three years of termination under section 90 of the Employment Act
- A claim for malicious prosecution depends on the acquittal of the accused and must be instituted within three years under the Limitation of Actions Act
- Suits for malicious prosecution may be brought against those in charge of instituting and prosecuting criminal matters as well as the complainant where malice is alleged
Court orders
#- 1.The 1st Defendant/Applicant is struck out from the Plaint dated 30th January 2017
- 2.The entire claim is dismissed as statute barred and unsustainable against either of the respondents
- 3.No orders for costs
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment claims; suit transferred from the High Court on grounds of jurisdiction
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Patrick Saidi Musyoka v Kenya Roads Board & another [2019] KEELRC 447 (KLR)", Case Analysis (2019). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/447/eng@2019-10-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.