Cooperative Bank of Kenya Limited v Joseph Kinyua Ngari [2020] KECA 302 (KLR)
The bottom line
#Kenya's Court of Appeal ruled that an employer who follows the Employment Act's disciplinary steps can summarily dismiss an employee, and parties are bound by their agreed mode of hearing.
What this practically means
#Executive summary
#Key legal issues
#Whether the documents-only hearing before the ELRC was a proper exercise of discretion
It was; the parties themselves, through counsel, requested and consented to the hearing on documents and submissions, and were bound by that choice. The complaint of a wrong mode of hearing had no merit.
Rule 21 of the Employment and Labour Relations (Procedure) Rules, 2010 permits a court to determine a suit on pleadings, affidavits, documents and submissions, either on its own motion or by agreement of all parties. The record showed counsel for the respondent requested the documents-only hearing and counsel for the appellant did not object. Having elected that path, the appellant could not, on appeal, fault the Judge for not hearing witnesses. The doctrines of waiver and estoppel, as stated in Serah Njeri Mwobi v John Kimani Njoroge, precluded the complaint.
Whether the appellant followed due process in summarily dismissing the respondent
Yes. The Court found that every step required by Sections 41 and 45 of the Employment Act and the Staff Manual was followed, and there was no breach of natural justice.
The respondent was served with two show cause letters giving detailed particulars of the alleged losses; he gave a written explanation; he was invited to a disciplinary hearing with date, time, venue, the charges and an itemised summary of losses attached; he was informed of his right to produce documentary evidence, call witnesses and be accompanied by a colleague. He attended the hearing, charges were read, denied and heard. The claim of bias in the composition of the panel was unsupported by any material placed before the trial Judge.
Whether the Judge was right to hold that technical officers should have been called to explain the complex technical allegations
No. The parties had chosen not to call witnesses, and the only issue was whether due process was followed, not the technical merits of the allegations.
Having elected a documents-only hearing, the parties were bound by that course and it was not open to the Judge to hold that technical evidence was required. What was before the Judge was an examination of whether due process had been followed in the disciplinary proceedings. The disciplinary committee had considered the material and explanations before it, and applying the flexibility recognised for administrative decision-makers in SGS Kenya Limited v Energy Regulatory Commission, strict rules of evidence did not apply.
Whether the respondent had been paid terminal benefits
The Court found it unnecessary to determine this issue in view of its final decision allowing the appeal and dismissing the suit.
The Court noted the respondent's averment that he had been paid terminal benefits amounting to Kshs.84,686.50 credited to his Internal Settlement Account, and a document titled 'Computation of Terminal Benefits' on the record computing salary in lieu of leave days and salary for days worked in July 2014. However, the Court expressly declined to address the issue further since the appeal was being allowed on the due process question.
Whether the award of 8 months' salary compensation could stand
The Court found it unnecessary to engage with the grounds on compensation because the appeal was being allowed and the suit dismissed.
The last two grounds of appeal attacked the award of 8 months' salary compensation as excessive and based on irrelevant factors. Having concluded that the disciplinary process followed due process and that the Judge erred in finding the dismissal wrongful, the Court allowed the appeal and dismissed the entire suit, rendering an examination of the quantum of compensation academic.
Legal principles established
#- A party who consents to, or requests, a documents-only hearing cannot later complain that witnesses should have been called; waiver and estoppel preclude such a complaint.
- An employer who complies with Sections 41 and 45 of the Employment Act – giving reasons, providing detailed charges, and hearing representations before summary dismissal – has followed due process and the dismissal is not unfair.
- Administrative and disciplinary tribunals are not strictly bound by the rules of evidence and matters should be determined on a case-to-case basis depending on the facts.
Court orders
#- 1.The appeal is allowed
- 2.The suit before the ELRC is dismissed
- 3.The appellant is awarded costs of the appeal and of the suit in the ELRC
- On appeal from
- Employment and Labour Relations Court of Kenya at Nairobi
- ELRC Cause No. 2155 of 2014
- Jurisdiction invoked
- First appeal from the Employment and Labour Relations Court under the Employment and Labour Relations Court Act and the Constitution of Kenya, 2010 (Article 162(2) creating the ELRC); specific appellate provision not stated in the judgment.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Cooperative Bank of Kenya Limited v Joseph Kinyua Ngari [2020] KECA 302 (KLR)", Case Analysis (2020). Civil Appeal No. 370 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/302/eng@2020-10-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.