Thomas Nyangi Mwita v Kenya Commercial Bank Ltd [2015] KEELRC 25 (KLR)
The bottom line
#A Kenyan court awarded a bank manager over Kshs 13 million because KCB could not prove his dismissal was fair or justified.
What this practically means
#Executive summary
#Key legal issues
#Whether the reasons for the Claimant's dismissal were valid and fair
The Respondent failed to prove that gross misconduct was a valid and fair reason for dismissal
The forensic investigator never interviewed the Claimant; the investigation report and findings were not shared with him; no telephone logs linked him to the Makwata transaction; the lending policy allegedly breached was not produced; and audit reports confirming SME loan losses were not filed. The documents signed and actions taken were by subordinate officers Musani and Nekoye, so linking the Claimant to the transactions was too far removed.
Whether the procedure followed in dismissing the Claimant was fair
The procedure failed statutory standards; a hearing only on appeal does not satisfy section 41 of the Employment Act
The Claimant responded to a show cause letter but was never invited to a disciplinary hearing before dismissal; investigations were conducted in his absence and while he was on sick leave; he was condemned without being heard and the investigation findings were never shared with him. A hearing arising only upon appeal is not the procedure envisaged under section 41.
What remedies flow from the finding of unfair dismissal
Reinstatement declined due to lapse of time; compensation, 36 months' loss of salary and notice pay awarded
Reinstatement was declined as a matter of specific performance over 4 years after dismissal. Loss of salary for 11 years was reasonably capped at 36 months at the last salary of Kshs.266,603.00. Compensation under section 49 was capped at 12 months' salary. Three months' notice pay was awarded as the contract provided 3 months' notice or payment in lieu.
Legal principles established
#- For complaints of unfair termination, the burden of proving that unfair termination occurred rests on the employee while the burden of justifying the grounds for termination rests on the employer
- Where an employer fails to prove the reason for termination, the termination is deemed unfair
- Investigations conducted in the employee's absence without sharing the findings or interviewing him do not satisfy the procedural fairness requirements of section 41 of the Employment Act
Court orders
#- 1.Declaration that the Claimant was unfairly dismissed
- 2.Loss of salary awarded at Kshs.9,597,708.00
- 3.Compensation awarded at Kshs.3,199,236.00
- 4.Notice pay awarded at Kshs.799,824.00
- 5.Dues subject to the provisions of section 49(2) of the Employment Act
- 6.Costs of the suit to the Claimant
- 7.Reinstatement declined
- Jurisdiction invoked
- Employment and Labour Relations Court Act, section 12(3)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (4)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Mitu-Bell Welfare Society v Kenya Airports Authority & 3 others[2021] KESC 34 (KLR)11 Jan 2021
- Rebecca Ajiambo Omala v Ephraim Sikenyi Kwena [2019] KEELC 5052 (KLR)[2019] KEELC 5052 (KLR)21 May 2019applied
- Kenya Airports Authority v Mitu-Bell Welfare Society & 2 others (Civil Appeal 218 of 2014) [2016] KECA 432 (KLR)[2016] KECA 432 (KLR)1 Jul 2016
- Kenny Kinako v Ringier Kenya Limited [2016] KEELRC 1229 (KLR)[2016] KEELRC 1229 (KLR)7 Apr 2016applied
Cite this brief
#Cite this brief
Caselaw, "Thomas Nyangi Mwita v Kenya Commercial Bank Ltd [2015] KEELRC 25 (KLR)", Case Analysis (2015). Cause No. 464 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/25/eng@2015-12-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.