Barclays Bank of Kenya v Ndegwa
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
#Key legal issues
#Whether the Bank discharged its burden under Sections 43 and 45 of the Employment Act to prove the reason for termination
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.
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.
Standard of interference with a first-instance factual finding on appeal
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.
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.
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.Appeal allowed
- 2.Judgment of the ELRC set aside and substituted with an order dismissing the respondent's claim with costs to the appellant
- 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.