Leonard Gethoi Kamweti v National Bank of Kenya Limited & 2 others [2016] KEELRC 453 (KLR)

Though the HR Manual allowed early retirement at the bank's direction, the court held the discretion had to be exercised objectively and judiciously. The Claimant's authentic audio recording of the 8/7/2013 board meeting, admitted under Section 78(A) of the Evidence Act, showed the board discussing his exit and loss of confidence in him before invoking early retirement. The Respondent's witness could assign no reason for the decision, so the discretion was not exercised objectively.

The Respondent objected to production of the electronic evidence, but the court admitted it under Section 78(A) of the Evidence Act, which makes electronic and digital material admissible even if not in original form. The Claimant demonstrated he made the recordings himself in the ordinary course of his duties as Company Secretary and showed previous recordings to establish authenticity, and the recording, when played, corroborated his account of the board discussing his exit.

The Claimant gave unrebuted evidence that a former employee, Ali Noor Ismael, received double his benefits, and the Respondent neither responded to nor rebutted this evidence, leading the court to find discriminatory treatment. However, the evidence did not specify what was paid double, and the benefits already paid (severance, medical allowance, half month's salary per year to retirement) were a reasonable settlement, so no additional award was made.

The Respondent urged the court to restrict itself to wrongful dismissal rather than constitutional infringement, relying on Paul Muhoro Kihara v Barclays Bank. The court made no finding of constitutional breach and instead compensated the Claimant through the statutory remedy of 12 months' salary for unfair termination under the Employment Act, leaving the constitutional prayers effectively unaddressed.