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ELRCDismissedCause Number 1093 of 2010· [2013] KEELRC 5 (KLR)

David Kabui v DHL Global Forwarding [K] Limited [2013] KEELRC 5 (KLR)

Industrial Court at Nairobi
17 January 2013
JRJames Rika
1,732 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ruled that a DHL accountant who transferred Kshs. 20 million to his own account was fairly dismissed, even though he returned the money.

What this practically means

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Executive summary

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The Claimant, David Kabui, formerly Cash Accountant of the Respondent, sued for a declaration that his summary dismissal was illegal and in violation of natural justice, together with compensation, exemplary damages, pension and costs. He asserted that on 27th October 2008 he filled an Outward Telegraphic Transfer Application Form with his own account number as beneficiary instead of the Respondent's Barclays account, transferring Kshs. 20 million to himself by human error under pressure of work, and that he promptly retransferred the money upon discovering the mistake. He claimed he was not fairly heard and that his appeal under the HR Manual went unanswered. The Respondent maintained the transfer was intentional, that the Claimant reversed it only after being instructed to do so, and that dismissal followed a fair disciplinary process. The Respondent's former Human Resource Manager, Claudio Onyango Otieno, testified that the Claimant was investigated, suspended, asked to show cause, heard, and dismissed, and that the employer lost confidence in him. The Court preferred the Respondent's evidence, holding the case was one of monumental fraud rather than human error: the Claimant consciously entered his own account number, momentarily held the money, and retransferred it only after discovery. Reversal of the transfer and the employer's decision not to involve the Police did not absolve the employment offence, and blame directed at the departmental head Mwongera was rejected. The disciplinary procedure conformed to the Employment Act 2007 minimum standards. The claim was dismissed in its entirety with costs to the Respondent.

Key legal issues

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01

Whether the dismissal was substantively justified

Holding

Yes - the Claimant deliberately diverted Kshs. 20 million to his own account, amounting to gross misconduct justifying dismissal

Reasoning

The Court accepted the Respondent's evidence that the Claimant consciously entered his own account number as beneficiary and only retransferred the money after the error was discovered. The employer had more than reasonable grounds to suspect the Claimant was engaged in a crime against its property and could not be expected to continue trusting him.

p. 3
02

Whether the dismissal was procedurally fair

Holding

Yes - the disciplinary procedure complied with the Employment Act 2007 and internal mechanisms

Reasoning

The Claimant was investigated, suspended, called upon to show cause, given a chance to state his case, and to appeal. His appeal was dismissed and the decision communicated by letter dated 11th December 2008. This met the minimum statutory disciplinary procedure under the Employment Act 2007 and the Respondent's internal mechanisms.

p. 3

Legal principles established

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  • Reversal of a wrongful transfer does not absolve an employee of the employment offence committed
  • An employer's decision not to involve the Police does not preclude it from taking disciplinary action against an employee

Court orders

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  1. 1.The Claim is dismissed in its entirety
  2. 2.The Claimant shall meet the costs of the Claim
Jurisdiction invoked
Industrial Court jurisdiction over employment disputes (issue in dispute: unfair and unlawful termination)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "David Kabui v DHL Global Forwarding [K] Limited [2013] KEELRC 5 (KLR)", Case Analysis (2013). Cause Number 1093 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/5/eng@2013-01-17

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