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ELRCDismissedCause No 396 of 2010· [2013] KEELRC 910 (KLR)

Agnes Murugi Mwangi v Barclays Bank of Kenya Limited [2013] KEELRC 910 (KLR)

Industrial Court of Kenya
27 November 2013
1,682 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Industrial Court upheld a bank's dismissal of an employee for excessive outside borrowing, ruling the contractual ban on third-party loans was fair and reasonable.

What this practically means

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Executive summary

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In this first-instance employment dispute, the Claimant, employed by the Respondent bank since 1991 and earning Kshs. 82,815 monthly at separation, sued for wrongful termination effected on 6th September 2007 following a disciplinary hearing over persistent financial misconduct, namely excessive borrowing from third parties contrary to Clause 4 of her employment contract. She sought severance pay, service pay, retirement benefits, three months' notice pay, leave pay, general and aggravated damages, costs and interest. The Respondent admitted the employment relationship but maintained that the termination was fair and lawful, the Claimant having breached a contractual prohibition on borrowing from money lenders while already owing the bank Kshs. 2,600,000. The court first held that the Employment Act, 2007 did not apply retrospectively, the applicable law being the repealed Employment Act (Cap 226), the applicable Collective Bargaining Agreement and the contract of employment, following Jeremiah Ojwang Ojak v Central Bank of Kenya. It rejected the argument that the borrowing restriction was unconscionable, finding it reasonable for a financial institution protecting its reputation and its employees from financial ruin. On the merits, the court found gross misconduct established, a valid reason for termination, and procedural fairness in the disciplinary hearing, dispensing with progressive discipline. All ancillary claims failed: no redundancy for severance, pension lump sum already paid, one month's notice pay already given, and leave pay unproved. The entire claim was dismissed with no order for costs on 27th November 2013.

Key legal issues

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01

Applicable employment law regime

Holding

The repealed Employment Act (Cap 226), the applicable CBA and the contract of employment applied, not the Employment Act, 2007

Reasoning

The Claimant relied on the Employment Act, 2007, but her employment was terminated on 6th September 2007 while the new Act commenced on 2nd June 2008. Following Nduma J in Jeremiah Ojwang Ojak v Central Bank of Kenya, the 2007 Act has no retrospective application to contracts terminated before its operationalisation.

p. 2
02

Whether the restriction on third-party borrowing was unconscionable

Holding

The restriction in Clause 4 of the contract was reasonable and not unconscionable

Reasoning

The court examined the rationale for the restriction: employees need a fair proportion of salary for living expenses, and financial institutions require higher personal financial discipline from staff who are the face of the bank. The Respondent had extended an affordable staff facility of Kshs. 2,600,000 to the Claimant, making the restriction reasonable in context.

p. 3
03

Substantive justification for termination

Holding

The Respondent had a valid reason for terminating the Claimant's employment

Reasoning

The Claimant did not deny excessive third-party borrowing and sought a bail-out while owing Kshs. 2,600,000 to the Respondent. Banks handle other people's money and must demonstrate high integrity and financial probity, a standard extending to their employees. The Claimant's conduct fell below this standard, amounting to gross misconduct under the repealed Act.

p. 3
04

Procedural fairness of the termination

Holding

The termination procedure complied with the rules of natural justice, dispensing with progressive discipline

Reasoning

The Claimant was invited to a disciplinary hearing by letter setting out the charges and notifying her of the right to be accompanied by a representative. She attended with her representative and was given an opportunity to defend herself. As gross misconduct was established, a progressive warning procedure was dispensed with.

p. 3

Legal principles established

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  • The Employment Act, 2007 does not apply retrospectively to employment contracts terminated before its commencement on 2nd June 2008; the repealed Employment Act (Cap 226) governs such terminations
  • A contractual restriction on employees of a financial institution borrowing from third parties is reasonable and not unconscionable where it protects the institution's business reputation and shields employees from financial ruin
  • Excessive borrowing from third parties by a bank employee constitutes gross misconduct justifying summary termination without progressive discipline

Court orders

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  1. 1.The Claimant's entire claim is dismissed with no order for costs

Authorities

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Legislation

  • Employment ActGeneral (retrospective application)
  • Employment Act (Cap 226) (repealed)Section 17

Cases cited (1)

  • Jeremiah Ojwang Ojak Vs Central Bank of Kenya
    [2012] eKLR
Jurisdiction invoked
Jurisdiction of the Industrial Court of Kenya over employment and labour relations disputes (Cause No 396 of 2010)

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, "Agnes Murugi Mwangi v Barclays Bank of Kenya Limited [2013] KEELRC 910 (KLR)", Case Analysis (2013). Cause No 396 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/910/eng@2013-11-27

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