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ELRCPartially AllowedNot stated in the judgment (Criminal Case No. 2125 of 2001, Meru referenced only as the underlying prosecution)· [2019] KEELRC 2059 (KLR)

Fredrick Mwaniki Musee & 4 others v Attorney General & 2 others [2019] KEELRC 2059 (KLR)

Employment and Labour Relations Court of Kenya
8 March 2019
2,909 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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A Kenyan court awarded five ex-police officers Kshs.1.1 million each for torture during detention, but refused damages for malicious prosecution and unfair dismissal.

What this practically means

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Executive summary

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Five former police officers attached to Marsabit Police Station were arrested on 4.10.2001 following the theft of Kshs.1,400,000 from the station armoury, detained for 15 days, tortured to force confessions, then charged in Meru in Criminal Case No. 2125 of 2001, from which they were acquitted on 25.1.2003. They were interdicted on half salary, then dismissed by the Provincial Police Officer effective 30.9.2003. They sued for damages for malicious prosecution, constitutional damages for inhuman treatment, unpaid half salary and salary arrears, and unfair termination or reinstatement. Three Claimants testified; the defence called no evidence. The court held the Claimants proved on a balance of probability that they were detained far beyond 24 hours and tortured in violation of section 74(1) of the repealed Constitution, entitling each to Kshs.1,000,000 under section 84(2); the absence of medical evidence did not negate their consistent sworn testimony. The malicious prosecution claim failed because the police, who had the Claimants guarding the armoury on the night of the theft, had reasonable and probable cause to suspect them. The unfair dismissal claim failed for want of proof, and reinstatement was barred by section 12 of the Employment and Labour Relations Act as more than three years had lapsed. Each Claimant was awarded Kshs.105,000 in withheld half salary (21 months at Kshs.5,000), a total of Kshs.1,105,000 each, with costs and interest from the date of judgment, subject to statutory deductions. Backdated salary arrears were declined for lack of particulars.

Key legal issues

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01

Torture and inhuman treatment contrary to section 74(1) of the repealed Constitution

Holding

Claimants proved on a balance of probability they were detained 15 days and tortured to force confessions, violating section 74(1); each awarded Kshs.1,000,000 under section 84(2)

Reasoning

Three Claimants testified consistently on arrest, 15-day detention, torture by beating, hanging between tables, dipping in river water and detention in waterlogged cells. The defence tendered no evidence, so the sworn testimony was unrebutted. Lack of medical evidence did not negate the consistent oral testimony. Prolonged detention beyond 24 hours without cause established the constitutional violation entitling each Claimant to damages.

p. 3
02

Malicious prosecution

Holding

Claim dismissed; police had reasonable and probable cause to suspect the Claimants

Reasoning

The tort requires proof of prosecution instituted by the defendant, favourable termination, absence of reasonable and probable cause, and malice. The Claimants were the officers guarding the armoury on the night of the theft, which entitled the police to harbour reasonable suspicion that they stole or failed to prevent the theft. With reasonable and probable cause established, the claim failed despite the acquittal.

p. 4
03

Unfair and unlawful termination of employment

Holding

Not proved; the dismissal by letter of 12.8.2003 effective 30.9.2003 was not shown to be unfair

Reasoning

The Claimants never produced any evidence of a contract showing that termination by more than one month's notice was not permitted. Having failed to discharge the burden of proof on a balance of probability, the claim of unfair dismissal failed, and reinstatement was in any event barred by the three-year rule in section 12 of the Employment and Labour Relations Act.

p. 4
04

Withheld half salary during interdiction

Holding

Awarded at Kshs.105,000 per Claimant (21 months x Kshs.5,000)

Reasoning

The Claimants were interdicted on half salary from October 2001 to 24.6.2003 when the interdiction was lifted after acquittal. Computing 21 months at the withheld Kshs.5,000 per month, the court granted Kshs.105,000 each. The claim for backdated salary review arrears from 1.7.2003 was declined because particulars were not provided.

p. 4

Legal principles established

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  • Uncontroverted sworn evidence may be accepted even where medical or documentary evidence is absent
  • Detaining a suspect beyond 24 hours to force a confession violates the right to liberty and freedom from torture and inhuman or degrading treatment under section 74(1) of the repealed Constitution, attracting damages under section 84(2)
  • The elements of malicious prosecution as established in Kagame v Attorney General, including reasonable and probable cause and malice
  • The ELRC lacks power to order reinstatement where more than three years have lapsed since separation

Court orders

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  1. 1.Declaration that the Claimants' rights to liberty and freedom from torture and inhuman or degrading treatment were violated
  2. 2.General damages of Kshs.1,000,000 to each Claimant for torture and inhuman treatment
  3. 3.Kshs.105,000 to each Claimant for withheld half salary during the 21-month interdiction
  4. 4.Total judgment of Kshs.1,105,000 per Claimant
  5. 5.Costs and interest at court rate from the date of judgment
  6. 6.Award to be subject to statutory deductions

Authorities

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Legislation

  • Constitution of Kenya (repealed)Section 74(1)
  • Constitution of Kenya (repealed)Section 84(2)
  • Constitution of Kenya (repealed)Section 84(6)
  • Constitution of Kenya, 2010Article 162(2)(a)
  • Constitution of Kenya, 2010Article 165(5)
  • Employment and Labour Relations ActSection 12

Cases cited (6)

  • Harried Karimi –vs- Attorney General
    [2005] eKLR
  • Katerrega –vs- Attorney General
    [1973] E.A. 289
  • Kutima Investments Ltd. –vs- Muthoni Kihara and Commissioner of Mines and Geology
    [2005] eKLR
  • Geoffrey Githiri Kamau –vs- Attorney General
    {2015} eKLR
  • Chrispine Otieno Caleb –vs- Attorney General
    [2014] eKLR
  • Kagame and Others –vs- The Attorney General
    (1969) E.A. 643
Jurisdiction invoked
Article 162(2)(a) and Article 165(5) of the Constitution of Kenya, 2010 (employment matters transferred to this Court)

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, "Fredrick Mwaniki Musee & 4 others v Attorney General & 2 others [2019] KEELRC 2059 (KLR)", Case Analysis (2019). Not stated in the judgment (Criminal Case No. 2125 of 2001, Meru referenced only as the underlying prosecution). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/2059/eng@2019-03-08

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