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ELRCPartially AllowedNot stated in the judgment· [2015] KEELRC 1240 (KLR)

Onesmus Omwenga Maroko v Co-operative Bank of Kenya Ltd [2015] KEELRC 1240 (KLR)

Industrial Court of Kenya (Employment and Labour Relations Court)
10 February 2015
1,539 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan employer failed to prove an employee's fraud or give him a fair hearing, so the court awarded him six months' salary plus costs.

What this practically means

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Executive summary

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The Claimant sued his former employer following the summary dismissal of his employment, which the Respondent attributed to his approval of fraudulent M-pesa transactions resulting in a loss of Kshs. 11 million. The Claimant, who had been charged with stealing by servant in a criminal case later withdrawn under Section 87(a) of the Criminal Procedure Code, sought notice pay, a half-salary balance, service pay, twelve months' compensation for unfair termination, payment of a CIC personal injury cover cheque, and leave pay. A prior judgment by Marete D.K. Njagi J. had been set aside by consent, and the parties highlighted their submissions for a fresh judgment. The court distilled four issues: lawful cause, fair hearing, remedies, and costs. It found no evidence implicating the Claimant in the fraud: no investigation report or Safaricom records were produced, and the criminal case was never proved. On procedure, the Respondent's assertion that the Claimant declined a hearing through his advocate appeared only in submissions, was unsupported by evidence, and was absent from the pleadings; the court therefore found a breach of Section 41 of the Employment Act and held the termination unfair and unlawful. On remedies, the court awarded one month's salary in lieu of notice and six months' salary as compensation, but refused severance pay as the Claimant was covered under Section 35 of the Employment Act. The CIC cheque claim failed because CIC, a distinct legal entity, was not a party to the suit. Judgment was entered for the Claimant in the sums of Kshs. 87,877/- and Kshs. 527,262/-, with costs and interest at court rates from the date of judgment.

Key legal issues

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01

Whether the Claimant was terminated for lawful cause

Holding

No lawful cause was established; no investigation report or Safaricom records were produced linking the Claimant to the fraudulent transactions

Reasoning

The Respondent alleged a loss of Kshs. 11 million through fraudulent M-pesa transactions approved by the Claimant. However, apart from a table of analysis in submissions, there was no investigation report, no extract from Safaricom, and the criminal case was withdrawn. The court could not find any evidence pointing to the Claimant's culpability.

p. 3
02

Whether the Claimant was accorded a fair hearing under Section 41 of the Employment Act

Holding

No procedural fairness was accorded; the Respondent's assertion that the Claimant declined a hearing through his advocate was raised only in submissions and unsupported by evidence

Reasoning

The Respondent asserted in submissions that the Claimant was invited to respond to the investigation findings but declined through his former advocate. No evidence of the invitation was availed and the pleadings never raised the point. The court therefore found a breach of Section 41, rendering the termination unfair and unlawful.

p. 3
03

Whether the Respondent was liable for the CIC insurance cheque

Holding

No order could issue against the Respondent on the CIC cheque because CIC was a separate legal entity and was not joined as a party

Reasoning

The court acknowledged that if the Respondent was CIC's agent it should have passed the cheque to the Claimant, but since CIC was not a party to the suit and there is a distinction between the entities, no order could be made against the Respondent on that head.

p. 3
04

Remedies for the unfair termination

Holding

One month's salary in lieu of notice and six months' salary as compensation were awarded; severance pay was denied

Reasoning

The Claimant earned Kshs. 87,877/- monthly and was entitled to one month's notice. For the breach of Section 41, the court exercised its discretion to award six months' salary as compensation. Severance pay was declined because the Claimant was covered under Section 35 of the Employment Act.

p. 3

Legal principles established

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  • An employer must avail evidence of the investigation and of the employee's culpability before dismissing for cause; a criminal case withdrawn under section 87(a) of the Criminal Procedure Code does not establish the employee's guilt
  • Termination without compliance with the procedural fairness requirements of Section 41 of the Employment Act is unfair and unlawful

Court orders

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  1. 1.Judgment for the Claimant for Kshs. 87,877/-
  2. 2.Judgment for the Claimant for Kshs. 527,262/-
  3. 3.Costs of the suit to the Claimant
  4. 4.Interest on the award and costs at court rates from the date of judgment until payment in full
Jurisdiction invoked
Original employment and labour relations jurisdiction over a claim for unfair termination (Employment Act); not expressly stated in the judgment

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, "Onesmus Omwenga Maroko v Co-operative Bank of Kenya Ltd [2015] KEELRC 1240 (KLR)", Case Analysis (2015). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/1240/eng@2015-02-10

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