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ELRCPartially AllowedNot stated in judgment (Notice of Motion dated 6th May, 2015)· [2015] KEELRC 177 (KLR)

Peter Kamau Mwaura & another v National Bank of Kenya Limited [2015] KEELRC 177 (KLR)

Employment and Labour Relations Court
20 November 2015
1,898 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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A Kenyan court let sacked bank employees keep their cheaper staff loan rates during the case, but they must keep repaying their loans.

What this practically means

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Executive summary

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The claimants, former employees of the respondent bank, brought a notice of motion dated 6th May 2015 seeking interlocutory injunctions pending the hearing of their claim challenging the termination of their employment in April 2015 on grounds of poor performance. They sought first, an order restraining the respondent from collecting any monies from them in repayment of staff loan facilities obtained during employment, and alternatively, an order restraining the respondent from converting the preferential interest rates on those loans to market rates. The respondent opposed, relying on its Performance Management Policy and Staff Loan Policy, and contending that staff loans and preferential rates were privileges, not entitlements, which ceased upon termination subject to 30 days' notice. Applying the Giella v Cassman Brown principles, the court found the claimants' contested termination - raising allegations of unfair termination and violations of Articles 41, 47 and 27 of the Constitution - constituted a prima facie case with some probability of success. However, the court refused the first prayer, holding it unconscionable to restrain a financial institution entrusted with depositors' money from collecting loan repayments. On the alternative prayer, the court held that the threatened conversion of rates flowed directly from the contested termination, that no prejudice would befall the respondent if the claimants continued servicing their loans at staff rates pending trial, and granted prayer 5 of the motion. The judgment was delivered at Nairobi on 20th November 2015 by Abuodha J. N.

Key legal issues

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01

Whether the claimants established a prima facie case

Holding

Yes - the contested termination raised substantial questions warranting preservation

Reasoning

The claimants contested the reason and procedure of their termination and alleged violations of Articles 41, 47 and 27 of the Constitution. The court found these were not simple claims and raised important questions about the manner and reasons for termination, satisfying the prima facie case threshold with some probability of success.

p. 3
02

Whether the respondent should be restrained from collecting loan repayments

Holding

No - such an order would be unconscionable

Reasoning

The respondent is a financial institution entrusted with depositors' funds. Restraining it from collecting principal and interest on loans advanced would effectively let the claimants enjoy the loan facility without repayment, causing irreparable prejudice to the bank and its depositors.

p. 4
03

Whether preferential staff loan rates should be preserved pending trial

Holding

Yes - preservation order granted

Reasoning

The threat to convert the loans to market rates arose directly from the contested termination. If the claimants succeed at trial, the court could order continued servicing at staff rates; conversely any amount paid at staff rates could be adjusted. No prejudice would therefore befall the respondent, and the balance of convenience favoured preservation.

p. 4

Legal principles established

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  • Interlocutory relief in employment disputes is governed by the Giella v Cassman Brown principles: prima facie case with probability of success, damages as inadequate remedy, and balance of convenience
  • Where the threatened conversion of staff loan rates flows directly from the contested termination, no prejudice is occasioned to the employer in maintaining the staff rate pending trial

Court orders

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  1. 1.Prayer 5 of the Notice of Motion dated 6th May 2015 granted pending the hearing and determination of this suit, restraining the respondent from reviewing or converting the preferential staff loan interest rates to market rates
  2. 2.Prayer restraining the respondent from collecting loan repayments refused

Authorities

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Legislation

  • Constitution of KenyaArticle 47 (fair administrative action)
  • Constitution of KenyaArticle 41 (fair labour practices)
  • Constitution of KenyaArticle 27 (non-discrimination)

Cases cited (5)

  • Abraham Nyambane Asiago v. Barclays Bank of Kenya Ltd
  • BIFU vs. Consolidated Bank Ltd
  • Mrao Limited v. First American Bank Ltd & 2 others
  • Harrischandra Bhovanbhai Jobanputra & Another v. Paramount Universal Bank Ltd
  • Giela vs. Cassman Brown
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over disputes arising from employment-related loan facilities (asserted by claimants citing Abraham Nyambane Asiago v. Barclays Bank of Kenya Ltd)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Peter Kamau Mwaura & another v National Bank of Kenya Limited [2015] KEELRC 177 (KLR)", Case Analysis (2015). Not stated in judgment (Notice of Motion dated 6th May, 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/177/eng@2015-11-20

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