Onesmus Omwenga Maroko v Co-operative Bank of Kenya Ltd [2014] KEELRC 1172 (KLR)
The bottom line
#A Kenyan bank's dismissal of an employee over fraud was ruled unfair because the employer skipped the required hearing process under the Employment Act.
What this practically means
#Executive summary
#Key legal issues
#Whether the summary dismissal of the claimant was wrongful, unfair and unlawful
The termination was wrongful, unfair and unlawful because the respondent did not follow the due process required by Sections 41, 44 and 45 of the Employment Act, 2007, and did not rebut the claimant's evidence of lack of due process or produce the investigation report
The court set out Sections 45, 41 and 44 of the Employment Act, 2007, which require a valid and fair reason plus fair procedure of notification and hearing before dismissal. It found the claimant's case of termination without due process elaborate and uncontroverted; the respondent neither filed submissions nor offered evidence of the investigation or report supporting a justifiable termination. Criminal discharge under Section 87(a) of the Criminal Procedure Code notwithstanding, the employer's failure to observe statutory procedure rendered the dismissal unfair.
Whether the claimant is entitled to the relief sought
The claimant is entitled to relief having proved unlawful termination, but quantum could not be assessed for want of evidence of his emoluments; the issue of quantum was left open for the parties
Having proved a case of unlawful termination, the claimant is entitled to relief. However, relief in law is assessed on salary as at the date of termination. The claimant produced no evidence of his emoluments; the attached pay slips were for October 2008 and totally illegible, and the cited monthly salary of Kshs.87,877 was unsupported. The court therefore left quantum open for the parties to address.
Who bears the costs of the claim
The claimant, having succeeded, is entitled to costs, which were ordered against the respondent
The court found the claimant had prevailed on liability and accordingly exercised its discretion to award costs of the claim to the claimant, to be borne by the respondent.
Legal principles established
#- A termination of employment is unfair where the employer fails to prove a valid and fair reason and that a fair procedure, including notification and hearing under Section 41 of the Employment Act, was followed
Court orders
#- 1.A declaration that the termination of the claimant's employment was wrongful, unfair and unlawful
- 2.The issue of quantum of relief is left open for the parties to deal with as they deem appropriate
- 3.The respondent to bear the costs of the claim
- Jurisdiction invoked
- Jurisdiction of the Industrial Court over employment and labour relations disputes (Industrial Court Act; Employment Act, 2007)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Onesmus Omwenga Maroko v Co-operative Bank of Kenya Ltd [2014] KEELRC 1172 (KLR)", Case Analysis (2014). Cause No. 449 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/1172/eng@2014-06-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.