Onesmus Omwenga Maroko v Co-operative Bank of Kenya Ltd [2015] KEELRC 1240 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the Claimant was terminated for lawful cause
No lawful cause was established; no investigation report or Safaricom records were produced linking the Claimant to the fraudulent transactions
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of analysis in submissions, there was no investigation report, no extract from Safaricom, and the criminal case was withdrawn.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.
Whether the Claimant was accorded a fair hearing under Section 41 of the Employment Act
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
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.
Whether the Respondent was liable for the CIC insurance cheque
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
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.
Remedies for the unfair termination
One month's salary in lieu of notice and six months' salary as compensation were awarded; severance pay was denied
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.
Legal principles established
#- 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
#- 1.Judgment for the Claimant for Kshs. 87,877/-
- 2.Judgment for the Claimant for Kshs. 527,262/-
- 3.Costs of the suit to the Claimant
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.