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ELRCDismissedELRCC No. 752 of 2016 (test suit; consolidated with Causes Nos. 753 and 867 of 2016)· [2024] KEELRC 21 (KLR)

Namale v I & M Bank Limited & 2 others (Cause 752 of 2016) [2024] KEELRC 21 (KLR)

Employment and Labour Relations Court of Kenya
24 January 2024
8,491 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~34 min to read original · ~4 min brief

The bottom line

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A Kenyan court dismissed a security guard's claims that his employer and bank maliciously prosecuted him, ruling acquittal alone doesn't prove malice.

What this practically means

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Executive summary

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Three consolidated Employment and Labour Relations Court claims arising from the arrest, prosecution and acquittal of security employees of the 2nd Respondent after a break-in at the 1st Respondent bank's Parklands branch on the night of 22nd/23rd April 2013. ELRCC No. 752 of 2016 (Hillary Okune Namale) proceeded as a test suit. The Claimant sought declarations that his arrest, detention and prosecution were malicious, false and illegal, general damages, loss of earnings, and declarations that his dismissal was unfair with terminal dues and compensatory damages. The court framed five issues, including its own jurisdiction. Holding that its jurisdiction under Article 162(2)(a) and Section 12 of the ELRC Act extends to tortious claims only where an employer/employee relationship exists, it found it had no jurisdiction over the tort claims against the 1st and 3rd Respondents. On the merits, the court found the break-in overwhelmingly proved, that the police investigated before charging, and that the 1st and 2nd Respondents merely reported the crime without naming the Claimant; malice and absence of reasonable and probable cause were not established, and the acquittal under Section 210 was not of itself a foundation for malicious prosecution. The court found the Claimant deserted his post after release on bond rather than being dismissed, though he remained entitled to pay for any unpaid accrued leave days. The suit was dismissed with each party bearing their own costs.

Key legal issues

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01

Jurisdiction of the ELRC over tortious claims against non-employer respondents

Holding

The court has no jurisdiction to determine the Claimant's tortious claims against the 1st and 3rd Respondents, with whom he had no employment relationship.

Reasoning

The court's jurisdiction flows from Article 162(2)(a) and Section 12 of the ELRC Act, circumscribed to employment and labour relations disputes. While Section 12(1) is open-ended ('including'), unlisted matters must fall within ejusdem generis. Unlawful arrest, prosecution and defamation claims only fall within the court's jurisdiction if they arise within an employer/employee relationship; the Claimant had none with the 1st and 3rd Respondents.

p. 10
02

Whether there was a break-in at the 1st Respondent's Parklands branch

Holding

Yes - the prosecution evidence in the criminal case overwhelmingly established the break-in, and the Claimant admitted it.

Reasoning

Witnesses including the bank's employees and a Scenes of Crime Officer recounted the vandalism, gas cylinders, broken strong room door and tampered CCTV. The 2nd Respondent's report stated the bank had been broken into. The Claimant himself admitted the break-in in evidence in chief. The court discredited none of this testimony.

p. 12
03

Whether the Claimant deserted or was terminated

Holding

The Claimant absconded/deserted the workplace; no unfair termination was proved.

Reasoning

The Claimant was absent from 9th May 2013, made no effort to resume duty after release on bond in November 2013, and sued only in 2016. No dismissal letter existed but no evidence of termination was tendered, so under Section 47(5) Employment Act the burden of proving unfair termination, which rested on the employee, was not discharged. He is however entitled to pay for any unpaid accrued leave days.

p. 13
04

Whether the arrest, charge and prosecution were malicious and without reasonable and probable cause

Holding

No - the Claimant failed to prove the Respondents initiated or instigated the prosecution or acted with malice.

Reasoning

Neither the 1st nor the 2nd Respondent named the Claimant in their reports; they merely reported the break-in, which is a citizen's proper conduct. The police investigated - Scenes of Crime and other officers testified to investigations before the arrest over two weeks later - and the ODPP preferred charges. The Claimant adduced no evidence of malice, want of reasonable and probable cause, or that the Respondents procured his arrest.

p. 17

Legal principles established

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  • The ELRC's jurisdiction over tortious claims such as unlawful arrest, prosecution and defamation depends on an employer/employee relationship
  • Reporting a suspected crime to the police does not, without more, render the complainant liable for malicious prosecution; the police must investigate and the complaint must lack reasonable and probable cause and be actuated by malice
  • An acquittal is not of itself sufficient foundation for malicious prosecution
  • Burden under Section 47(5) Employment Act: employee proves unfair termination; employer justifies grounds
  • On a desertion defence the employer must show efforts made to contact the employee to resume duty
  • Elements of malicious prosecution: initiation by the defendant, absence of reasonable and probable cause, malice, and termination in the plaintiff's favour

Court orders

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  1. 1.The suit is dismissed
  2. 2.The prayer for a declaration that the arrest, detention and prosecution was malicious, false and illegal is declined
  3. 3.General damages for the tortious claims are dismissed
  4. 4.The claim for damages for loss of earnings is dismissed
  5. 5.The declaration that the dismissal was unfair/wrongful/unlawful is declined
  6. 6.The 2nd Respondent shall pay the Claimant for any unpaid outstanding leave days
  7. 7.Parties shall bear their own costs
Jurisdiction invoked
Article 162(2)(a) of the Constitution of Kenya, 2010 read with Section 12 of the Employment and Labour Relations Court Act, 2011

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, "Namale v I & M Bank Limited & 2 others (Cause 752 of 2016) [2024] KEELRC 21 (KLR)", Case Analysis (2024). ELRCC No. 752 of 2016 (test suit; consolidated with Causes Nos. 753 and 867 of 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/21/eng@2024-01-24

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