Joseph Kibera Omote v Kenya Airports Authority [2019] KEELRC 2166 (KLR)
The bottom line
#Kenyan employers cannot withhold your final pay because of criminal charges, but you'll rarely win damages unless the employer itself drove the prosecution.
What this practically means
#Executive summary
#Key legal issues
#Whether the employer was liable for malicious prosecution
The claim failed because the Respondent did not institute the prosecution; the police made the charging decision independently
The court restated the four elements of malicious prosecution from Murunga v Attorney General and Kagane v Attorney General. It noted that the claim was against the employer, whose only role was lodging a complaint with the police. The police conducted independent investigations and decided to charge. Without proof that the Respondent instituted the prosecution or influenced the decision, no malicious prosecution was established, so general and special damages were dismissed.
Whether the Claimant was entitled to interest on the withheld severance pay
Yes, interest at court rates on the agreed sum of Kshs. 2,110,109 from the date of filing suit until payment in full
The Respondent withheld the Claimant's dues because of pending criminal proceedings, but the court found no legal basis for this. Terminal dues accrue to an employee regardless of the mode or reason of exit. The Respondent's withholding was unjustifiable, and interest was awarded at court rates from the date of filing suit, to be assessed by the Deputy Registrar within 21 days.
Costs
Half costs awarded to the Claimant since the claim succeeded only in part
Because the Claimant succeeded only on the interest limb and failed on malicious prosecution damages, the court exercised its discretion to apportion costs, directing the Respondent to pay half of the costs incurred in the case rather than the full costs sought.
Legal principles established
#- Terminal dues are a right of every employee irrespective of the mode and reason of exit, and an employer cannot lawfully withhold them pending criminal proceedings
- An employer who merely lodges a complaint with the police, who then independently investigate and decide to charge, is not liable for malicious prosecution
Court orders
#- 1.The claims for general and special damages for malicious prosecution are dismissed
- 2.The Claimant is awarded interest at court rates on the agreed sum of Kshs. 2,110,109 from the date of filing suit until payment in full
- 3.The Deputy Registrar to assess the interest payable in the presence of both parties within twenty-one (21) days from the date of the judgment
- 4.The Respondent to pay the Claimant half of the costs incurred in the case
- 5.Certificate of service (as agreed in the partial consent of 9th October 2018)
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under its constitutive statute over employment and labour relations claims
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Joseph Kibera Omote v Kenya Airports Authority [2019] KEELRC 2166 (KLR)", Case Analysis (2019). Memorandum of Claim dated 6th June 2017 (ELRC Mombasa). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/2166/eng@2019-02-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.