Mukawa (Hotel) Hodings Ltd t/a the Nairobi Safari Club v Wilson Chacha Muhono [2019] KEELRC 450 (KLR)

The court adopted the four elements of malicious prosecution (initiation, lack of probable cause, malice, favourable termination). It held that proceedings are initiated by filing in court, and Criminal Case No. 1749 of 2003 was a public prosecution by the Attorney General under section 26(3) of the former Constitution, whose prosecutorial discretion under section 26(8) could not be directed or controlled by the complainant. Without initiation by the appellant, the tort could not lie; the court did not consider the remaining elements. The AG not having been sued, the claim was misconceived, and res judicata did not bar revisiting the issue since the preliminary objection ruling had not decided it.

The Employment Act 2007 was not in force at the time of the cause of action; the Trade Disputes Act Cap. 234 applied, defining trade disputes to include dismissal and vesting settlement of unresolved trade disputes in the Industrial Court (sections 2, 4(5), 8 and 14). The respondent admitted union membership and that the CBA applied. The preliminary objection ruling had not conclusively decided the point, so res judicata did not apply; and in any event a ruling cannot create jurisdiction where none exists, per Owners of Motor Vessel 'Lilian S' v Caltex Oil (Kenya) Ltd.

Following the findings on malicious prosecution and jurisdiction, the court held that the appeal would succeed and the prayers issue as prayed for in the memorandum of appeal: the judgment and decree of the trial court were set aside and substituted with an order dismissing the entire suit, with costs to the appellant in both the original case and the appeal.