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Court of AppealDismissedCivil Appeal No. 295 of 2016

Violet Kadala Shitsukane v Kenya Post Savings Bank [2020] KECA 718 (KLR)

Court of Appeal
24 April 2020
3,043 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal confirmed a bank lawfully dismissed a cashier whose password was used in fraud, even without proof she participated.

What this practically means

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Executive summary

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The Court of Appeal (Ouko, P., Nambuye and M'inoti, JJ.A) dismissed this first appeal against the judgment of the Employment and Labour Relations Court (N. Makau, J) which had dismissed the appellant's suit for unfair termination while entering judgment for the respondent bank on its counter-claim for the admitted sum of Kshs. 548,891.80 less notice pay on house allowance. The appellant, a Senior Cashier, was terminated for involvement in an 'act of operational irregularity' after her password was used by a colleague to remove a restraint on a deceased customer's account, leading to a withdrawal of Kshs. 100,000. The Court held that although the trial Judge erred in stating that no written submissions were on record, no prejudice was occasioned as all evidence and pleadings had been evaluated. On substantive fairness, the Court found the respondent had reasonable grounds to dismiss the appellant: as sole custodian of her password, she could not be blameless, and the fact her password was used sufficed for a banking institution to lose faith and trust in her, even without proof she participated in or benefited from the fraud. The Court stressed that the employer's standard of proof in disciplinary proceedings over employee fraud is not the criminal standard. On procedural fairness, the show-cause process, disciplinary meetings at which the appellant made representations, reasons in the termination letter, and the considered appeal satisfied section 45(2)(c) of the Employment Act. The Court declined to address the trial Judge's unsolicited observation on accompaniment at disciplinary hearings beyond restating that section 41 applies only where the employee wishes and avails names of colleagues. The appeal was dismissed with no orders as to costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the learned Judge erred in failing to consider the appellant's written submissions
  2. 2.Whether the respondent proved valid and fair reasons for the termination of the appellant's employment (substantive justice)
  3. 3.Whether the termination was effected in accordance with fair procedure under section 45(2)(c) of the Employment Act
  4. 4.Whether the learned Judge correctly computed the appellant's dues and the respondent's counter-claim

Key legal issues

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01

Whether the dismissal of written submissions without consideration by the trial court vitiates the judgment

Holding

The trial Judge was mistaken in stating there were no submissions on record, but no prejudice was occasioned since all pleadings, evidence and proceedings were evaluated; the ground fails

Reasoning

The Court found all pleadings, documentary evidence, witness testimonies, disciplinary proceedings and the appellate panel decision were on record and were evaluated and considered by the learned Judge. The respondent's submissions had also not been considered, so the appellant suffered no prejudice over and above the respondent. Consistent with its decision in Daniel Okoth vs KNCHR, the misdirection was not fatal. Written submissions are not evidence.

p. 2
02

Whether there were valid and fair reasons for the termination (substantive justice)

Holding

The respondent had reasonable grounds for dismissing the appellant for failing to adhere to operational procedures; her password's use in the irregular transaction pointed to negligence and justified loss of trust

Reasoning

The appellant was the sole custodian of her password, which was used to remove a restraint on a deceased customer's account leading to loss of funds. Although there was no evidence she benefited from or participated in the fraud, the fact her password was used sufficed, given the sensitive banking environment, for the employer to lose faith and trust. The employer charged her with operational irregularity, and the disciplinary standard of proof is not the criminal standard.

p. 3
03

Whether the termination followed fair procedure under section 45(2)(c) of the Employment Act

Holding

The appellant was accorded a fair hearing: she was notified of allegations, responded, was heard before the Staff Committee, was issued reasons and her appeal was considered and rejected

Reasoning

The Court traced the sequence: show-cause letter dated 9th February 2012, the appellant's response, interdiction, further reply, Staff Committee (Disciplinary) meetings on 11th, 23rd and 24th April 2012 at which she made representations, the termination letter outlining reasons and dues, and the appeal to the Managing Director which was considered and rejected. This series of events demonstrated a fair hearing, and the Court agreed with the Judge below.

p. 4
04

The computation of the appellant's dues and the counter-claim

Holding

The Court agreed with the learned Judge's computation based on the appellant's admission of indebtedness of Kshs. 548,891.80

Reasoning

The appellant admitted owing the respondent Kshs. 548,891.80, being the balance of her house loan, and the learned Judge had directed recalculation of dues including three months' notice pay covering both basic salary and house allowance. The Court found no basis to disturb the Judge's approach on the counter-claim, which succeeded only to the extent of the admitted sum less the notice pay on house allowance.

p. 4

Legal principles established

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  • Section 41 of the Employment Act entitles an employee to have a colleague or shop floor union representative at a disciplinary hearing only if the employee wishes and avails their names; the court cannot impose them on the employee
  • The standard of proof an employer deploys in dealing with employee fraud and theft in disciplinary proceedings is not the criminal standard
  • On a first appeal, the Court is required to re-evaluate the evidence on record afresh and arrive at its own independent conclusions, while making allowance for not having seen or heard the witnesses
  • Where an employee's password is used to effect an irregular transaction and the employee is its sole custodian, the employer may lose faith and trust in the employee even absent proof of benefit or participation in the fraud

Court orders

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  1. 1.Dismissal of the appeal
  2. 2.No orders as to costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

William Ouko
W. OukoJA
Currently serving
majority
majority
majority
On appeal from
Employment and Labour Relations Court at Nairobi
E.L.C Cause No. 115 of 2013
Jurisdiction invoked
First appeal to the Court of Appeal under the Court of Appeal's appellate jurisdiction (Employment and Labour Relations Court judgment)

Relief refused

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The appellant's claim for unfair, unlawful and wrongful termination (reinstatement, damages, and 12 months' salary compensation)

The Court found the respondent had valid reasons for termination and accorded the appellant a fair hearing; the appeal had no merit

p. 4

Costs

No orders as to costs - each party bears own costs

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

The upshot is that the appeal has no merit and we accordingly dismiss it with no orders as to costs.
p. 4Disposition
We emphasize that the standard an employer deploys in dealing with employee fraud and theft is not the criminal standard of proof.
p. 3Standard of proof in disciplinary proceedings
Even though there was no evidence to suggest that she benefited from or participated in the fraud, the fact that her password was used was sufficient for the respondent, in view of its nature of business, to lose faith and trust in the appellant.
p. 3Employee negligence and employer's loss of trust
only entitles an employee at the disciplinary hearing to invite another employee or a shop floor union representative of his or her choice, if he or she wishes
p. 2Section 41 Employment Act - accompaniment at disciplinary hearing
This series of events show that the appellant was accorded a fair hearing and, with respect, we agree with the Judge in that regard.
p. 4Procedural fairness
in a first appeal, we are required to re-evaluate the evidence on record afresh so as to arrive at our own independent conclusions, on that evidence, but bearing in mind that we did not see or hear the witnesses and should make due allowance in that respect.
p. 2Duty of first appellate court

Issues in the judgment

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minor

The judgment contains an internal editorial note indicating an incomplete sentence in the recital of the trial court's findings

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Violet Kadala Shitsukane v Kenya Post Savings Bank [2020] KECA 718 (KLR)", Case Analysis (2020). Civil Appeal No. 295 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/718/eng@2020-04-24

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