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ELRCPartially AllowedCause No. 977 of 2011· [2015] KEELRC 273 (KLR)

Margaret Wanjiru Mbuthia v Kenya Commercial Bank Limited [2015] KEELRC 273 (KLR)

Employment & Labour Relations Court
15 October 2015
4,218 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~17 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The Claimant, employed by Kenya Commercial Bank from 1991 and latterly Operations Manager at the Tom Mboya branch, was dismissed on 14th December 2010 for gross misconduct following the theft of Kshs. 841,000/- from ATM no. 0167 in March 2010, attributed to her and a co-custodian's failure to scramble their ATM combinations. She sought reinstatement or re-engagement, notice pay, 12 months' compensation, damages including libel damages, and severance/early retirement package benefits. The Respondent maintained the dismissal was for a valid reason and followed fair procedure. The court adopted three issues plus costs. It held that although the Respondent theoretically had a reason to terminate, the matter had already been concluded by a June 2010 disciplinary process which ended in a severe reprimand and transfer; the Respondent was therefore 'misplaced' in reopening the case, amounting to a second 'trial' for the same offence, which the court found unlawful. Procedurally, the Respondent had followed disciplinary steps, but the duplicated process vitiated the dismissal. The court reduced the dismissal to normal termination with notice. Reinstatement was refused as beyond the statutory period; the libel claim was declined as better pursued elsewhere and time-barred; and the early retirement package claim failed because the March 2010 application deadline predated the second disciplinary process. The court awarded the maximum 12 months' compensation of Kshs. 1,557,828/-, the employer's pension contribution for 19 years, a certificate of service under Section 51 of the Employment Act, costs, and interest, subject to statutory deductions.

Key legal issues

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01

Whether the Respondent had a valid reason to terminate the Claimant's employment

Holding

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

Reasoning

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.

p. 5
02

Whether the Respondent followed due process before termination

Holding

The Respondent followed disciplinary procedure (show cause, hearing, appeal) but the second disciplinary process itself was improper, amounting to double jeopardy

Reasoning

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.

p. 5
03

Whether the Claimant was entitled to the early retirement package benefits

Holding

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

Reasoning

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.

p. 6

Legal principles established

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  • 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

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  1. 1.Kshs. 1,557,828/- as compensation being the maximum 12 months
  2. 2.Employers contribution on her 19 years pension
  3. 3.Certificate of Service strictly issued in accordance with Section 51 of the Employment Act
  4. 4.Costs of the suit to the Claimant
  5. 5.Interest on the compensation and pension sums at court rates from date of filing suit till payment in full
  6. 6.The sums in (a) and (b) be subjected to statutory deductions as per the Employment Act

Authorities

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Legislation

  • Employment ActSection 45
  • Employment ActSection 44(4)(c)
  • Employment ActSection 45(2)(c)
  • Employment ActSection 51

Cases cited (8)

  • Walter Ogal Anuro v Teachers Service Commission
    [2013] eKLR
  • Fred A. Odhiambo v Attorney General & Anor
    [2013] eKLR
  • Zahida Yasin v Barclays Bank of Kenya
    [2012] eKLR
  • University of Nairobi v Mbuthia
    [1985] KLR 821
  • Jimi Masege v Kenya Airways Limited
    [2010] eKLR
  • Banking Insurance & Finance Union v Post Bank Limited
    [2013] eKLR
  • Moses Chavangi v Barclays Bank Ltd
    Cause 694 of 2010
  • David Getare Nyangau v Houseman General Contractors Ltd
    [2013] eKLR
Jurisdiction invoked
Employment and labour relations jurisdiction of the Employment & Labour Relations Court (first-instance cause under the Employment Act)

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, "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.