Boaz Makomere v Consolidated [Msa] Limited & another [2019] KEELRC 1407 (KLR)
The bottom line
#A Kenyan court awarded an ex-employee Kshs. 5 million after finding his employer maliciously prosecuted him and unfairly dismissed him — but declined commissions and gratuity.
What this practically means
#Executive summary
#Key legal issues
#Malicious prosecution and false imprisonment
Claim allowed; the Respondents had no reasonable and probable cause and malice inferred
The Claimant himself called the Police and alerted the owner of the tea; the Respondents supplied the complaint and witnesses yet no material linked him to the offence. Key suspect Gondi was let go and the Claimant substituted. Kioko, an accomplice, exonerated the Claimant in mitigation, yet prosecution continued. No prudent and cautious person would have believed the Claimant guilty; charges were not shown to be preferred solely to carry the law into effect.
Unlawful termination and loss of employability
General damages of Kshs. 2,500,000 against the 1st Respondent
Termination occurred before the Employment Act 2007, so no procedural fairness under Section 41 applied, but the old regime allowed the employee to dispute summary dismissal reasons, and the Claimant was given no such chance. His job applications were rejected due to the prosecution and he found work only three years later; loss of employability is compensable.
Claim for commissions at 2% of profits
Declined; commission was discretionary, not a contractual entitlement
Correspondence showed the Claimant was initially told he was not entitled to profit share; the 2% award for 1995 was specific to that year, and the Kshs. 100,000 bonus for 1996 issued through a valid Board decision. The financial statements relied on were draft, not audited accounts, and could not establish profitability warranting profit-sharing.
Gratuity, service pay and salary arrears
Declined
No clause in the contract as originally crafted or varied granted gratuity or service pay, and no law was cited permitting the Court to grant it. The contract terminated on 19th July 1997; the acquittal did not reinstate it or justify back and front salaries, and salary for days worked in July 1997 was paid.
Applicability of Section 41 Employment Act 2007
Inapplicable to a 1997 termination
The Employment Act 2007 was not in force at termination; the old Employment Act permitted termination for just cause, no cause or bad cause without procedural fairness, though it allowed the employee to dispute the correctness of reasons for summary dismissal for gross misconduct. The Claimant was denied that opportunity.
Legal principles established
#- Elements of malicious prosecution: prosecution by the respondent, favourable determination, absence of reasonable and probable cause, and malice
- Loss of employability is compensable by an award of damages
- An acquittal in a criminal court does not revive a contract of employment terminated before the acquittal
- Commissions and bonuses are variable pay payable at the employer's discretion unless incorporated as invariable contractual terms
Court orders
#- 1.The Respondents shall jointly and severally pay to the Claimant general damages for malicious prosecution and false imprisonment at Kshs. 2,500,000.
- 2.The 1st Respondent shall pay to the Claimant general damages for breach of contract, unlawful termination and loss of employability at Kshs. 2,500,000.
- 3.Costs to the Claimant payable by the 1st Respondent.
- 4.Interest at 14% per annum from the date of Judgment till payment is made in full.
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction following the High Court's transfer of the suit upon finding it lacked jurisdiction (2016)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Boaz Makomere v Consolidated [Msa] Limited & another [2019] KEELRC 1407 (KLR)", Case Analysis (2019). Plaint filed at the High Court Mombasa on 21st May 1999, transferred to the Employment and Labour Relations Court (file number not stated in the judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1407/eng@2019-06-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.