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ELRCPartially AllowedCause No. 743 of 2013· [2016] KEELRC 47 (KLR)

John Kinyanjui Gateru v Family Bank Ltd [2016] KEELRC 47 (KLR)

Employment and Labour Relations Court of Kenya at Nairobi
30 September 2016
7,074 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~28 min to read original · ~4 min brief

The bottom line

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A Kenyan bank could fire a branch manager for missing loan files, but still lost partially because it denied him a proper hearing first.

What this practically means

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Executive summary

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The Claimant, employed by Family Bank from 2000 and last serving as Thika Branch Manager on a gross salary of Kshs.200,000, was suspended on 14 October 2011 after an internal audit revealed irregularities at the branch, including 15 missing loan files, missing securities and reckless lending. On 1 November 2011 he was summoned to head office where allegations were read to him; when he asked for time to respond he was instead given a summary dismissal letter the following day. He claimed the dismissal was unlawful and sought notice pay, salary for 2 days, leave, overtime, house allowance, severance pay, service pay, compensation and a certificate of service. The Respondent justified the dismissal under section 44(4)(c) of the Employment Act and counter-claimed for the outstanding car loan secured by a chattels mortgage over motor vehicle KBH 413N, which it repossessed through auctioneers. The court held that although the audit disclosed valid substantive grounds for dismissal and the Claimant had a chequered disciplinary record, the Respondent breached the mandatory procedure in section 41: no notice of allegations, no opportunity to prepare a defence and no fellow employee present. The dismissal was therefore procedurally unfair. Notice pay of Kshs.600,000, 2 days' salary, 14 days' leave and leave allowance were awarded, but house allowance, overtime, severance, service pay and compensation were declined, the latter in light of the Claimant's poor work record. The counter-claim was allowed: the loan is repayable at the staff rate, with auctioneer and storage charges of Kshs.40,535.53 and Kshs.16,000 payable by the Claimant, and repossession was declared justified. Each party was ordered to bear its own costs. Judgment delivered on 30 September 2016 by M. Mbaru, J.

Key legal issues

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01

Whether the summary dismissal was procedurally fair under section 41 of the Employment Act

Holding

The dismissal was procedurally unfair - no notice of allegations, no opportunity to prepare a defence, no fellow employee present, and no special circumstances justified departing from section 41

Reasoning

The Claimant was suspended on 14 October 2011 to allow investigations. He was then called to a meeting on 1 November 2011 where allegations were read to him impromptu and he was told to collect his dismissal letter the next day. The court held that even in cases warranting summary dismissal, the employee must be given a hearing however brief, notice of allegations, and the right to have a fellow employee present. The Respondent failed to set out special circumstances excusing compliance.

p. 8
02

Whether there were valid substantive grounds for dismissal

Holding

Yes - the audit revealed serious irregularities, missing files and policy breaches attributable to the Claimant as branch manager, amounting to neglect of duty under section 44(3)

Reasoning

The audit found 15 missing loan files exposing the bank to losses of over Kshs.5.9 million, missing securities, unapproved loan restructuring, unpaid loans and irregular disbursements. The Claimant's offer to return and address irregularities implicated him. His disciplinary history of warnings and cautions was undisputed. Substantively the dismissal was justified, but procedural fairness was denied.

p. 8
03

What remedies flow from a procedurally unfair but substantively justified dismissal

Holding

Notice pay at contract rate, admitted salary days, accrued leave and certificate of service were awarded, but no compensation, house allowance, overtime, severance or service pay

Reasoning

The court considered section 45(5) factors including the Claimant's litany of warning and caution letters. Procedural lapses justified notice pay in lieu of the contractual 3 months' notice, but the Claimant's lack of diligence disentitled him from compensation under section 49. Statutory deductions under section 49(2) apply to terminal dues, which are also set off against sums owed on the counter-claim.

p. 9
04

Whether the Respondent was entitled to repossess the security vehicle and recover the loan

Holding

Counter-claim allowed - repossession was justified on default, and the loan is repayable at the staff rate plus auctioneer and storage charges

Reasoning

The Claimant admitted the loan secured by chattels mortgage over motor vehicle KBH 413N and defaulted after termination. The court held the staff-rate benefit survives as part of the employment relationship, and to charge commercial rates would sanction the unfair procedure in the dismissal. The Claimant must repay outstanding dues at the staff rate and bear auctioneer and storage charges.

p. 11

Legal principles established

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  • Even where summary dismissal is warranted for gross misconduct, the employer must comply with section 41 of the Employment Act by giving notice of allegations and an opportunity to be heard
  • Suspension of an employee must be followed by a notice to show cause and a hearing, otherwise the purpose of the suspension is lost
  • An employee's previous disciplinary record and warnings are relevant in assessing circumstances of dismissal and remedies under section 45(5) of the Employment Act
  • A staff loan facility flows from the employment relationship and repayment terms tied to employment survive termination
  • An employer may deduct lawful dues, statutory deductions and loan repayments from terminal dues under sections 19 and 49(2) of the Employment Act

Court orders

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  1. 1.The Claimant shall repay the loans and money facilities advanced to him by the Respondent at the current going rate for staff
  2. 2.Notice pay awarded at Kshs.600,000.00
  3. 3.2 days' pay at Kshs.13,150.70
  4. 4.14 days leave at Kshs.92,054.80
  5. 5.Leave allowance Kshs.33,335.00
  6. 6.The dues are subject to the provisions of section 49(2) of the Employment Act
  7. 7.The Claimant shall be issued with a Certificate of Service
  8. 8.The Claimant's dues shall be paid less what he is owing the Respondent in terms of the counter-claim award
  9. 9.Declared that the Respondent is entitled to repossess from the Claimant its security motor vehicle (KBH 314N/413N) in view of default in repaying the banking facility
  10. 10.The Claimant shall repay all outstanding loan facility accounts owing to the Respondent to date at staff rate interests
  11. 11.The dues shall be computed and advice given to the Claimant to settle within the terms and conditions set in the chattels mortgage
  12. 12.The Claimant shall pay the sum of Kshs.40,535.53 and Kshs.16,000.00 being auctioneer and storage charges
  13. 13.Each party shall bear own costs

Authorities

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Legislation

  • Employment Actsection 41
  • Employment Actsection 41(2)
  • Employment Actsection 43
  • Employment Actsection 44(3)
  • Employment Actsection 44(4)(c)
  • Employment Actsection 45
  • Employment Actsection 45(5)
  • Employment Actsection 49
  • Employment Actsection 49(2)
  • Employment Actsection 40
  • Employment Actsection 35
  • Employment Actsection 31
  • Employment Actsection 19
  • Employment Actsection 51

Cases cited (6)

  • Bamburi Cement Ltd versus Farid Aboud Mohammed
    [2016] eKLR
  • CFC Stanbic Ltd versus Danson Mwashako Mwakuwona
    [2015] eKLR
  • Frederick Oweggi versus CFC Life Assurance
    Cause No.1001 of 2012
  • Amrick Gonzales versus Mara Ison Technologies Kenya Ltd
    Cause No.2538 of 2012
  • Christopher Onyango & Others versus Heritage Insurance Co. Ltd
    Cause No.781 of 2015
  • BIFU versus Consolidated Bank of Kenya Limited
    Cause No. 900 of 2012
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes (Employment Act; disputes of unlawful/wrongful summary dismissal)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "John Kinyanjui Gateru v Family Bank Ltd [2016] KEELRC 47 (KLR)", Case Analysis (2016). Cause No. 743 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/47/eng@2016-09-30

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