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ELRCAllowedCause No. 209 of 2011· [2015] KEELRC 1384 (KLR)

Stephen Makokha Were v Bank of Baroda (K) Limited [2015] KEELRC 1384 (KLR)

Employment and Labour Relations Court of Kenya
26 February 2015
HWHellen S. Wasilwa
740 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ordered Bank of Baroda to refund salary it deducted based on a workplace policy the employee had never seen or agreed to.

What this practically means

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Executive summary

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The Claimant, employed by the Respondent bank from 1993 until his resignation in July 2007, tendered a 30-day resignation notice. On departure, the Respondent deducted Kshs.175,592/= from his terminal dues on account of three months' salary in lieu of notice, relying on an alleged Human Resource Policy Manual said to apply to management-level staff. The Claimant sued for a refund, contending no such term existed in his employment contract and that the policy was never brought to his attention. The Respondent argued that the notice period increased from one to three months upon the Claimant's promotion to management level, per paragraph 1.3.8 of the HR Manual circulated to all staff including the Thika Branch, and sought dismissal of the claim with costs. The court framed a single issue: whether the applicable notice period was one or three months and, if three, whether it was brought to the Claimant's attention. The court found the Claimant's signed letter of appointment provided for one month's notice. The HR Manual relied on by the Respondent was unsigned, incomplete, of doubtful authenticity, and the Respondent failed to prove it had been served on or was known to the Claimant. The court allowed the claim, ordering a refund of Kshs.175,592/= plus interest and costs of the suit.

Key legal issues

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01

Whether the Respondent could lawfully deduct salary in lieu of a 3-month notice period based on an alleged Human Resource Policy Manual

Holding

The deduction was unlawful; the notice period was one month per the signed letter of appointment, and the Respondent failed to prove the HR Manual was authentic, complete or communicated to the Claimant.

Reasoning

The court examined the letter of appointment signed by both parties, which provided for one month's notice. The alleged Human Resource Policy Manual relied on by the Respondent was unsigned, only two pages, incomplete and of doubtful authenticity. The Respondent also failed to prove the manual was circulated to or known by the Claimant, who denied knowledge of it. A contractual term unknown to the employee could not be imposed, so the deduction of Kshs.175,592/= from terminal dues was unjustified.

p. 2

Legal principles established

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  • An unsigned, incomplete document whose service on an employee is not proved cannot be relied upon to impose contractual terms; the signed letter of appointment governs the notice period.

Court orders

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  1. 1.Respondent to pay the Claimant the sum of Kshs.175,592/= wrongly deducted from his terminal dues
  2. 2.Interest on the sum of Kshs.175,592/=
  3. 3.Respondent to pay costs of the suit
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act and the ELRC Act (Cause filed as Memorandum of Claim)

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, "Stephen Makokha Were v Bank of Baroda (K) Limited [2015] KEELRC 1384 (KLR)", Case Analysis (2015). Cause No. 209 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/1384/eng@2015-02-26

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