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ELRCDismissedNot stated in the judgment (ELRC claim filed by Mulanya & Maondo & Company Advocates)· [2019] KEELRC 1683 (KLR)

Lucas Akungu Omariba v Tatu City Limited [2019] KEELRC 1683 (KLR)

Employment and Labour Relations Court of Kenya
6 May 2019
4,152 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~17 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court confirmed it can hear defamation claims tied to employment, but dismissed the claim because the ex-CEO proved nothing.

What this practically means

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Executive summary

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The Claimant, formerly Chief Executive Officer of the Respondent, sued through Mulanya & Maondo & Company Advocates alleging that the Respondent published public notices in the Daily Nation and Business Daily, over three months after termination of his employment on 5th February 2015, stating he had ceased to be an employee and warning the public against dealing with him. He sought a declaration that the publication was malicious and humiliating, general and punitive damages, an apology and retraction in two newspapers, costs and interest. The Respondent filed a preliminary objection on jurisdiction but no defence or witness. The Court framed three issues: jurisdiction, whether the notices were defamatory, and entitlement to reliefs. On jurisdiction, the Court held that Article 162(2)(a) of the Constitution and Section 12 of the Employment and Labour Relations Court Act extend its mandate to all disputes relating to employment and labour relations, including employment-related defamation, and rejected the preliminary objection. On the merits, the Court set out the ingredients of defamation and found the Claimant had not established that the publication was defamatory or false, nor did he call evidence to show any third party regarded it as defamatory or that he suffered damage. Relying on the Court of Appeal decision in Daniel N. Ngunia v KGGCU Limited, the Court held a claimant who testifies alone cannot easily sustain a defamation claim. The claim was dismissed; aggravated damages were refused both because they cannot lie for breach of a private employment contract and because defamation was unproved. Each party was ordered to bear its own costs. Judgment delivered at Nairobi on 6th May 2019 by Maureen Onyango, Judge.

Key legal issues

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01

Whether the ELRC has jurisdiction over a defamation claim arising after termination of employment

Holding

The Court has jurisdiction under Article 162(2) of the Constitution and Section 12 of the ELRC Act because the dispute relates to employment and labour relations

Reasoning

The Respondent argued the cause of action arose after employment ceased, confining Section 12 to employer-employee contract disputes. The Court held that Article 162(2)(a) grants jurisdiction over all disputes relating to employment and labour relations, not merely contractual ones, and that Section 12 is inclusive, not exclusive. Precedents where the Court assumed jurisdiction over employment-related defamation supported this view. The objection was therefore rejected and the matter held properly before the Court.

p. 5
02

Whether the public notices published in the Daily Nation and Business Daily were defamatory

Holding

The Claimant failed to prove the ingredients of defamation; the claim fails

Reasoning

The Court set out the ingredients of defamation: the statement must be defamatory, refer to the plaintiff, be published by the defendant, and be false. Although the Claimant testified the notices embarrassed him and cost him employment prospects, he called no witness to prove that any third party found the publication defamatory or that he suffered damage. He also did not establish that the words or photograph were false, since truth of the contents was admitted. The burden of proof was not discharged.

p. 6
03

Whether the Claimant is entitled to the reliefs sought, including aggravated damages

Holding

Not entitled; the prayer for aggravated damages is dismissed

Reasoning

Having found that defamation was not proved, the Court held the Claimant was not entitled to aggravated damages for two reasons: aggravated damages cannot be granted for breach of a private contract between employer and employee, and the defamation claim was not proved. All consequential reliefs, including the apology and retraction, therefore fell away.

p. 6

Legal principles established

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  • The ELRC's jurisdiction under Article 162(2)(a) extends to all disputes relating to employment and labour relations, including employment-related defamation arising from the employment relationship
  • In a defamation claim the plaintiff must prove the ingredients of defamation, including that some person other than himself found the publication defamatory, ordinarily through supporting evidence
  • A claimant who is the only witness in a defamation claim faces difficulty in discharging the burden of proof

Court orders

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  1. 1.The prayer for aggravated damages is dismissed
  2. 2.Each party shall bear its costs of the suit

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 162(2)(a)
  • Employment and Labour Relations Court ActSection 12(1)(a)
  • Penal CodeSection 194
  • Penal CodeSection 195

Cases cited (23)

  • Parmiter Vs Coupland
    (1980) 6 M & W 105 at 108
  • Nation Media Group Ltd & 2 Others Vs John Joseph Kamotho & 3 Others
    (2010) eKLR
  • Gideon Mose Onchwati Vs Kenya Oil Co. Ltd & Another
    (2015) eKLR
  • Uren Vs John Fair Fax & Sons PTY Ltd
    117 C.L.R 115, 150
  • Dr. Ezekiel Nyangoya Okemwa Vs Kenya Marine & Fisheries Research Institute
  • Mukisa vs West End Traders
    (1969) EALR 696
  • Owners of Motor Vessel "Lillian" S Vs Caltex Oil
    (1989) KLR 1
  • Samuel Kamau Macharia & Another Vs Kenya Commercial Bank & 2 Others
    (2012) eKLR
  • Karisa Chengo, Jefferson Kalama Kengha & Kitsao Charo Ngati Vs Republic
    (2015) eKLR
  • Joseph Njogu Kamunge Vs Charles Muriuki Gachari
    (2016) eKLR
  • Miguna Miguna Vs The Standard Group & 4 Others
    (2016) eKLR
  • Nation News Paper Limited Vs Chesire
    (1984) KLR 156
  • Mikidadi Vs Khaigan and Another
    (2004) KLR 496
  • Registered Trustees of the Sisters of Mercy T/A Mater Misericordiae Hospital Vs Jacinta W. Maina & Another
    (2014) eKLR
  • Saki Limited Vs NSSF
  • Stanley Mungai Muchai Vs National Oil Corporation
    (2012) eKLR
  • Chrispine Otieno Caleb Vs Attorney General
    (2014) eKLR
  • Trust Bank Limited Vs Paramount Universal Bank Limited & 2 Others
    Nairobi (Milimani) HCCS No. 1243 of 2001
  • Karuru Munyororo Vs Joseph Ndumia Murage & Another
    Nyeri HCCC No. 95 of 1998
  • Hakika Transporters Services Limited v. Kenya Long Distance Truck Drivers and Allied Workers Union
    [2015] e-KLR
  • Paramount Bank Limited –V- Vaqvi Syed Qamara and Another
    (2017) eKLR
  • Simeon Nyachae Vs Lazarus Ratemo Musa & Another
    (2007) eKLR
  • Daniel N. Ngunia Vs KGGCU Limited
    (200) eKLR
Jurisdiction invoked
Article 162(2) of the Constitution of Kenya, 2010 and Section 12 of the Employment and Labour Relations Court Act

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, "Lucas Akungu Omariba v Tatu City Limited [2019] KEELRC 1683 (KLR)", Case Analysis (2019). Not stated in the judgment (ELRC claim filed by Mulanya & Maondo & Company Advocates). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1683/eng@2019-05-06

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.