Banking, Insurance and Finance Union [Kenya] v Consolidated Bank of Kenya Limited [2014] KEELRC 354 (KLR)
The bottom line
#A Kenyan court confirmed an employer can fire a worker over conduct that led to a criminal acquittal, but must still give them a hearing first.
What this practically means
#Executive summary
#Key legal issues
#Effect of criminal acquittal on workplace disciplinary dismissal
The acquittal did not invalidate the dismissal; the disciplinary process is independent of the criminal process absent workplace instruments joining them
The Court held that the public criminal process and the private disciplinary process are separate, with different standards of proof. Unless the employer communicated dependence on the criminal outcome, or the contract/CBA/law joins the two processes, an acquittal does not exonerate an employee from employment culpability. The criminal acquittal here resulted from failure to meet the beyond-reasonable-doubt standard, while the employer only needed reasonable and sufficient grounds.
Valid reason for termination
The Respondent had valid reason - the Grievant's role in a conspiracy to defraud the Bank of Kshs. 6.3 million
The Court accepted the evidence of the Security Guard Supervisor and Security In-Charge that the Grievant facilitated unauthorised access to the restricted Central Operations Unit Room, where Kennedy Oyamo was found hiding with customer account details. The Grievant lied about knowing Oyamo and Barongo. The additional allegations about shylock debts were rejected as they were not the reason in the dismissal letter.
Procedural fairness under Section 41 Employment Act 2007
The procedure was unfair; the Grievant was not heard despite the CBA Clause A5 'instant dismissal' provision
Section 41 requires explanation of charges and an opportunity to be heard. The Respondent conceded the Grievant was not heard; the show-cause letter issued the same day he was arrested and while he was in police custody, with no opportunity to respond. Clause A5 of the CBA did not dispense with the hearing requirement - instant dismissal means dismissal without notice, not without a hearing.
Appropriate remedy
Reinstatement refused; 5 months' gross salary (Kshs. 399,440) awarded for the procedural violation
Although the reason was valid, the complete absence of a hearing merited compensation. Reinstatement was refused because trust and confidence - the cornerstones of the employment relationship - had been eroded, the Grievant showed no remorse, and his return would shake customer confidence in the Bank.
Legal principles established
#- Employers are not limited in initiating workplace disciplinary proceedings by police investigations and criminal trials based on the same facts, unless the Employer has communicated that the disciplinary process depends on the outcome of the criminal process
- Standards of proof differ between criminal proceedings and workplace disciplinary processes; the Employer need only have reasonable and sufficient grounds on the balance of probabilities
- Summary dismissal must still be preceded by a fair hearing regardless of the length or absence of notice; instant dismissal clauses do not dispense with the hearing requirement
Court orders
#- 1.Claim allowed in part: Grievant granted 5 months' gross salary as compensation for the procedural violation, calculated at Kshs. 399,440
- 2.No order on the costs and interest
- 3.Reinstatement refused
- Jurisdiction invoked
- Employment and labour relations dispute under the Employment Act 2007 and Labour Relations Act 2007; dispute reported to the Minister for Labour under Section 62 of the Labour Relations Act 2007
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Musyoka t/a Jana Pestcon v Mnyika (Appeal E186 of 2024) [2025] KEELRC 376 (KLR)[2025] KEELRC 376 (KLR)13 Feb 2025followed
- Noel Njeghe Mwalamba v Louis Dreyfus Kenya Ltd [2015] KEELRC 882 (KLR)[2015] KEELRC 882 (KLR)19 Jun 2015followed
Cite this brief
#Cite this brief
Caselaw, "Banking, Insurance and Finance Union [Kenya] v Consolidated Bank of Kenya Limited [2014] KEELRC 354 (KLR)", Case Analysis (2014). Cause Number 1944 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/354/eng@2014-07-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.