Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCPartially AllowedCause No. 464 of 2012· [2015] KEELRC 25 (KLR)

Thomas Nyangi Mwita v Kenya Commercial Bank Ltd [2015] KEELRC 25 (KLR)

Employment and Labour Relations Court of Kenya
16 December 2015
8,286 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~33 min to read original · ~4 min brief

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

#
The Claimant, employed by the Respondent bank in December 2007 and serving as Senior Branch Manager at Bungoma earning Kshs.266,603.00 monthly, was summarily dismissed on 20th July 2011 for gross misconduct. The allegations concerned irregular overdrafts and account openings (notably the Makwata Construction account where he allegedly received Kshs.100,000 as a bribe), unauthorised overdrafts in several customer accounts, and irregular approval of SME loans with a potential loss of over Kshs.6.9 million. The Claimant responded in writing to a show cause letter but was never invited to a disciplinary hearing before dismissal; a hearing occurred only upon his appeal, which was dismissed in December 2011. He sought reinstatement or damages totalling about Kshs.38.9 million. The court found the burden lay on the employer under sections 43, 45(2) and 47(5) of the Employment Act. It held the Respondent failed to prove valid and fair reasons: the forensic investigator never interviewed the Claimant, the findings were not shared with him, no telephone logs or direct evidence linked him to the Makwata transaction, the lending policy was not produced, and no audit reports confirmed the alleged SME loan losses. The procedure also failed section 41, as a hearing only upon appeal is not what the statute envisages. Reinstatement was declined given the lapse of over four years. The court awarded loss of salary capped at 36 months (Kshs.9,597,708.00), 12 months' compensation (Kshs.3,199,236.00), and notice pay (Kshs.799,824.00), subject to section 49(2), with costs of the suit to the Claimant.

Key legal issues

#
01

Whether the reasons for the Claimant's dismissal were valid and fair

Holding

The Respondent failed to prove that gross misconduct was a valid and fair reason for dismissal

Reasoning

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.

p. 11
02

Whether the procedure followed in dismissing the Claimant was fair

Holding

The procedure failed statutory standards; a hearing only on appeal does not satisfy section 41 of the Employment Act

Reasoning

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.

p. 10
03

What remedies flow from the finding of unfair dismissal

Holding

Reinstatement declined due to lapse of time; compensation, 36 months' loss of salary and notice pay awarded

Reasoning

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.

p. 12

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. 1.Declaration that the Claimant was unfairly dismissed
  2. 2.Loss of salary awarded at Kshs.9,597,708.00
  3. 3.Compensation awarded at Kshs.3,199,236.00
  4. 4.Notice pay awarded at Kshs.799,824.00
  5. 5.Dues subject to the provisions of section 49(2) of the Employment Act
  6. 6.Costs of the suit to the Claimant
  7. 7.Reinstatement declined

Authorities

#

Legislation

  • Employment Actsection 47(5)
  • Employment Actsection 43
  • Employment Actsection 45(2)(a) and (b)
  • Employment Actsection 41(1) and (2)
  • Employment Actsection 44(3) and (4)(c)
  • Employment Actsection 49(1), (2) and (3)
  • Employment and Labour Relations Court Actsection 12(3)(viii)

Cases cited (6)

  • Amrick Consales versus Mara Ison Technologies Kenya Limited
    Cause No. 2538 of 2012
  • Moses Chavangi versus Barclays Bank Ltd
    Cause No. 646 of 2010
  • Elizabeth Omoro versus Nairobi Bottlers limited
    Cause No. 2493 of 2012
  • Cyrus Nyaga Kabute v Kirinyaga County Council
    Civil Appeal No. 29 of 1985
  • Henry Musemate Murwa versus PSC & AG
    Cause No. 546 of 2011
  • Mary Mutanu Mwende versus Ayuda Ninos de Africa-Kenya (Anidan-Kenya)
    Cause No. 50 of 2012
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.

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.