Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealPartially AllowedCivil Appeal 49 of 2018

Barclays Bank of Kenya v Ndegwa

Court of Appeal
20 December 2024
2,172 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

#

Kenya's Court of Appeal ruled that an employer only needs to genuinely believe its reason for firing an employee, not prove it beyond doubt.

What this practically means

#

Executive summary

#
The Court of Appeal allowed an appeal by Barclays Bank of Kenya against a decision of the Employment and Labour Relations Court at Nakuru (Radido, J) which had found the termination of Teresiah Wanjiru Ndegwa's employment substantively unfair and awarded her Kshs. 1,008,000, being eight months' gross wages. The respondent, a Customer Advisor at the Bank's Gilgil Branch, was dismissed on 12 July 2012 over alleged involvement in a fraudulent loan application supported by a forged audit report. The ELRC found procedural fairness under Section 41 satisfied - a finding not challenged - but held the Bank failed to discharge its burden under Sections 43 and 45, finding only a tenuous link between the respondent and the forged report through her husband. The Court of Appeal, re-appraising the evidence under Rule 31(1)(a), held that under Section 43 the employer need only prove the reasons it genuinely believed to exist, a partly subjective test. Given that audit fees of Kshs. 18,000 relating to the fraudulent loan were paid into a joint account held by the respondent and her husband, the Bank had a reasonable basis for believing she was complicit. The Judge had erred by applying a standard of proof beyond the balance of probabilities. The Court set aside the ELRC judgment, substituted an order dismissing the claim, and awarded the Bank costs in both courts. A respondent's mootness objection, based on release of the decretal amount in 2020, was not expressly resolved.

Key legal issues

#
01

Whether the Bank discharged its burden under Sections 43 and 45 of the Employment Act to prove the reason for termination

Holding

The Bank had a reasonable basis for genuinely believing the respondent was complicit, based on the payment of audit fees into a joint account she held with her husband, so the termination was substantively fair.

Reasoning

Section 43(2) imposes a partly subjective test: the employer must prove reasons it genuinely believed to exist. The forensic investigator's evidence showed the Kshs.18,000 'audit fees' payment went into a joint account held by the respondent and her husband, connected to a fraudulent loan application. This gave the Bank reasonable grounds for its belief, and the Judge erred by requiring proof beyond the balance of probabilities.

p. 4
02

Standard of interference with a first-instance factual finding on appeal

Holding

The Court may interfere where the trial judge misdirected himself in law, misapprehended the facts, took into account or failed to take into account relevant considerations, or where the decision is plainly wrong.

Reasoning

Invoking Rule 31(1)(a) and established authority, the Court re-appraised the evidence. The ELRC judge had acted on a wrong principle by expecting certainty about a joint account holder's knowledge, exceeding the balance-of-probabilities standard. On that basis the decision was plainly wrong and liable to be set aside.

p. 3

Legal principles established

#
  • Under Section 43 of the Employment Act, the test of the reason for termination is partly subjective: an employer need only prove the reasons it genuinely believed to exist at the time of termination.
  • A trial court errs where it applies a standard of proof beyond the balance of probabilities in assessing whether an employer discharged its burden under Sections 43 and 45.

Court orders

#
  1. 1.Appeal allowed
  2. 2.Judgment of the ELRC set aside and substituted with an order dismissing the respondent's claim with costs to the appellant
  3. 3.Appellant awarded the costs of this appeal
On appeal from
Employment and Labour Relations Court of Kenya at Nakuru
ELRC Cause No. 107 of 2014
Jurisdiction invoked
Appeal to the Court of Appeal under the Court of Appeal Rules (first appeal by right from ELRC decision); Rule 31(1)(a) of the Court of Appeal Rules invoked for re-appraisal of evidence

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Barclays Bank of Kenya v Ndegwa", Case Analysis (2024). Civil Appeal 49 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1852/eng@2024-12-20

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