Margaret Wanjiru Mbuthia v Kenya Commercial Bank Limited [2015] KEELRC 273 (KLR)
The bottom line
#A Kenyan court ruled KCB unfairly dismissed an employee by disciplining her twice for the same offence, awarding her maximum compensation.
What this practically means
#Executive summary
#Key legal issues
#Whether the Respondent had a valid reason to terminate the Claimant's employment
The court answered in the negative: the June 2010 disciplinary process had concluded with a reprimand and transfer, and there was no justification to reopen the matter, making the second disciplinary process and December 2010 dismissal unlawful
A disciplinary committee had on 9th June 2010 considered the Claimant's explanation and resolved on a severe reprimand and transfer, while her co-custodian Maritim was dismissed. Having already punished the Claimant, the Respondent was 'misplaced' in reopening the case in October 2010, especially as she was a prosecution witness against Maritim and the cleaner. The matter had been 'put to bed' by the first process, so the second process could not found a valid reason for dismissal.
Whether the Respondent followed due process before termination
The Respondent followed disciplinary procedure (show cause, hearing, appeal) but the second disciplinary process itself was improper, amounting to double jeopardy
The Claimant was given a show-cause letter, responded, appeared before a disciplinary committee and appealed. However, the second 'trial' was fatally flawed because she had already received her punishment - a severe reprimand which was effectively her last warning - and been transferred. Subjecting her to a further disciplinary process for the same conduct was illegal and vitiated the fairness of the termination notwithstanding procedural compliance.
Whether the Claimant was entitled to the early retirement package benefits
No - the application deadline of 15th March 2010 had expired before the second (illegal) disciplinary process began, so she could not have missed the package because of it
The voluntary early retirement package required requests by 15th March 2010. The theft occurred in March 2010 and the first disciplinary process, which was lawful, was the reason she missed the deadline. The second, illegal process only began in October 2010, after the deadline, so the Zahida Yasin ratio on missing exit packages due to unlawful disciplinary processes did not apply to her.
Legal principles established
#- An employee who has already been disciplined and punished for an infraction cannot be subjected to a second disciplinary process for the same offence; doing so renders the ensuing termination unfair
- Where the reason for dismissal is unlawful, the dismissal may be reduced to normal termination with notice, with damages limited to 12 months' compensation
Court orders
#- 1.Kshs. 1,557,828/- as compensation being the maximum 12 months
- 2.Employers contribution on her 19 years pension
- 3.Certificate of Service strictly issued in accordance with Section 51 of the Employment Act
- 4.Costs of the suit to the Claimant
- 5.Interest on the compensation and pension sums at court rates from date of filing suit till payment in full
- 6.The sums in (a) and (b) be subjected to statutory deductions as per the Employment Act
- Jurisdiction invoked
- Employment and labour relations jurisdiction of the Employment & Labour Relations Court (first-instance cause under the Employment Act)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Margaret Wanjiru Mbuthia v Kenya Commercial Bank Limited [2015] KEELRC 273 (KLR)", Case Analysis (2015). Cause No. 977 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/273/eng@2015-10-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.