Miriam Wakio Kaburo v Kevian Kenya Limited & another [2021] KEELRC 1076 (KLR)
The bottom line
#A Kenyan court confirmed employees can combine unfair termination and malicious prosecution claims, then sent this case to the magistrates' court for hearing.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction over malicious prosecution claim within an employment dispute
The Court has jurisdiction over both the unfair termination and malicious prosecution claims.
Both Respondents raised preliminary objections contending the Court lacked jurisdiction over the malicious prosecution prayer. The Court relied on established decisions of the E&LRC and the Court of Appeal decision in Barclays Bank of Kenya Limited v. Julius Kiema Kenga, cited by the Claimant, to hold that jurisdiction exists over both prayers where the prosecution stems from the employment relationship. The objection was accordingly declined.
Whether the Claim was ripe for determination under Rule 21
It was not ripe; the order for Rule 21 determination was reviewed and set aside.
The Court found no clear consensus that the matter would proceed under Rule 21, and that not all witness statements, documents and submissions were on file when judgment was reserved. Both parties had sought leave to file further documents. The claim was therefore not ripe for judgment, justifying review of the 5th April 2019 orders, particularly as the 1st Respondent's advocates had newly come on record.
Transfer of the Claim to the magistrates' court
The Court on its own motion transferred the Claim to the Chief Magistrate's Court Milimani.
Noting that the 1st Respondent had earlier, in an unprosecuted application dated 29th January 2018, sought transfer of the Claim to the Chief Magistrate's Court, and considering the Claimant's monthly salary of Kshs. 23,500, the Court saw no reason why the Claim could not be heard at first instance in the magistrates' court, and so ordered transfer for trial and disposal.
Legal principles established
#- The Employment and Labour Relations Court has jurisdiction to hear related prayers on unfair termination and malicious prosecution where the prosecution arose from the employment relationship
- Rule 21 determination requires that pleadings, affidavits, documents and submissions be on record before a judgment date is given; otherwise the claim is not ripe for judgment
Court orders
#- 1.Preliminary Objection on jurisdiction is declined
- 2.The orders made on 5th April 2019 are reviewed and set aside
- 3.The 1st Respondent is granted leave to file Witness Statements and Documents within 14 days of the Ruling
- 4.The Claimant and the 2nd Respondent may file and serve additional Witness Statements and Documents if need be, within 14 days of receiving the 1st Respondent's Witness Statements and Documents
- 5.The Claim is transferred to the Chief Magistrate's Court Milimani for trial and disposal
- 6.Parties shall obtain a hearing date before the Chief Magistrate's Court on an accelerated basis, considering the Claim was filed in 2015
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over claims for unfair termination and malicious prosecution arising from the employment relationship
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Miriam Wakio Kaburo v Kevian Kenya Limited & another [2021] KEELRC 1076 (KLR)", Case Analysis (2021). Not stated in the judgment (Claim filed 21st August 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1076/eng@2021-08-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.