Nyandiko v Kenya Commercial Bank Ltd
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the termination was unfair for want of valid reasons and procedural compliance
Yes. The reasons relied on by the trial judge were not in the letter of termination, and the appellant was neither given reasons nor invited to respond during disciplinary or appellate processes.
Sections 41 and 45 of the Employment Act mandatorily require the employer to explain reasons to the employee and hear representations. Both counsel conceded the appellant did not participate in any disciplinary proceedings. The bank's letter of termination referenced prior correspondence but did not state the valid reasons the trial judge identified, so no valid reasons were communicated.
Whether the remedies awarded were too low
Yes. The award of only one month's salary in lieu of notice was too low; three months' salary as compensation for unfair termination was substituted, plus the pleaded leave days payment.
Section 49 provides a wide range of remedies. Applying the Butt v Khan and Kitavi v Coastal Bottlers principles, the court found the award represented an entirely erroneous estimate given the conceded procedural unfairness, and interfered by adding three months' salary as compensation while affirming the notice pay.
Whether payment for 86 leave days (per the bank's record) or 45 leave days (as pleaded) should be awarded
Only the 45 leave days as pleaded and quantified at Kshs. 188,741.25 could be awarded; the appellant is bound by her pleadings.
Although a bank-generated document showed a balance of 86 leave days not taken, the claim pleaded was for 45 days at Kshs. 188,741.25. Following Gandy v Gaspar Air Charters, Odd Jobs v Mubia and Galaxy Paints v Falcon Guards, relief not founded on the pleadings cannot be granted unless pleadings are amended.
Legal principles established
#- A termination may be lawful yet procedurally unfair where the employer fails to accord the employee the procedure under sections 41 and 45 of the Employment Act, including reasons and an opportunity to respond.
- Valid reasons for termination must be contained in the letter of termination; reasons identified by a court but absent from the letter do not suffice.
- Parties are bound by their pleadings; relief not founded on the pleadings will not be given even where the underlying entitlement appears on the record.
- An appellate court will not disturb an award of damages unless it is so inordinately high or low as to represent an entirely erroneous estimate, or the judge proceeded on wrong principles or misapprehended the evidence.
Court orders
#- 1.Payment of Kshs. 188,741.25 for the forty five leave days entitlement not taken
- 2.One month's salary in lieu of notice as awarded by the learned Judge affirmed
- 3.Three months salary as compensation for unfair termination
- 4.Appeal allowed; trial court's award set aside and substituted with the above awards
- 5.Appellant to have costs both on appeal and in the court below
- On appeal from
- Industrial Court of Kenya at Nairobi (now Employment and Labour Relations Court)
- Industrial Court Case No. 165 of 2011
- Jurisdiction invoked
- First appeal to the Court of Appeal under the Court of Appeal's appellate jurisdiction (Employment and Labour Relations Court appeal)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Julius Garama Kitsao v Mnarani Club[2026] KEELRC 2490 (KLR)21 Sept 2026applied
- H Young Company (ea) Limited v Kenya Building, Construction, Timber & Furniture Industries Employees Union[2026] KECA 1020 (KLR)29 May 2026applied
Cite this brief
#Cite this brief
Caselaw, "Nyandiko v Kenya Commercial Bank Ltd", Case Analysis (2017). Civil Appeal 305 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/798/eng@2017-05-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.