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ELRCDismissedCause No. 119 of 2015· [2016] KEELRC 1245 (KLR)

Mutua Musau v Barclays Bank of Kenya Limited [2016] KEELRC 1245 (KLR)

Employment and Labour Relations Court of Kenya at Nairobi
23 March 2016
MMM. Mbaru
3,847 words in judgment
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The bottom line

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A Kenyan court ruled that being acquitted of a crime does not stop an employer from fairly firing you over the same conduct.

What this practically means

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Executive summary

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The claimant, employed by Barclays Bank of Kenya from 7th April 2008 as a Second Custodian at the Ngong Town branch, was terminated on 5th June 2012 on allegations of fraudulently authorising withdrawals totalling Kshs.750,000 from a customer's account between January and February 2012 by failing to follow set regulations. He was charged with stealing by servant but was acquitted on 19th September 2014. He sued for half salary, full salary for the suspension period, acting allowances, general damages, interest and costs, contending his defence was ignored, he had no customer contact, and his acquittal showed the termination was unfair. The respondent maintained the termination followed a disciplinary hearing on 4th May 2012 at which the claimant fully participated, that internal disciplinary processes are separate from criminal proceedings, and that terminal dues were lawfully applied to offset his unpaid loan. The court held that criminal acquittal does not bar workplace disciplinary action, as the two processes run under different frameworks and the standard of proof internally is on a balance of probabilities. It found the claimant had authorised transactions without following procedures, received cash from his co-accused, and had a prior 2008 disciplinary record. Sections 41, 45 and 47 of the Employment Act were satisfied and the failure to lodge an internal appeal undermined his claim. The termination was held fair and justified; the salary, allowance and damages claims failed for want of proof, deductions against the loan were lawful under section 19, and the entire claim was dismissed with each party bearing their own costs.

Key legal issues

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01

Effect of criminal acquittal on workplace disciplinary action

Holding

The acquittal did not render the termination unfair; the disciplinary process was separate from and governed by a different framework than the criminal proceedings.

Reasoning

Misconduct may attract both criminal and civil/disciplinary processes. The employer may report criminal conduct to the police while separately addressing the civil element internally. The criminal case was conducted by a state agency, not the employer, and the termination rested on the internal disciplinary hearing of 4 May 2012, where the standard is balance of probabilities, not proof beyond reasonable doubt.

p. 5
02

Validity of the reason and process of termination

Holding

There existed sufficient grounds and a just and reasonable process justifying termination; sections 41 and 45 of the Employment Act were complied with.

Reasoning

The claimant was given notice of the disciplinary hearing, participated fully, and was given an opportunity to defend himself. Investigations, including CCTV footage and the disciplinary minutes, established he authorised transactions without following procedures, received cash from his co-accused, and the respondent lost substantial money. His failure to lodge an internal appeal was unjustified.

p. 5
03

Lawfulness of deductions from terminal dues to offset the loan

Holding

Deductions made on salaries and terminal dues to offset the claimant's outstanding loan were lawful under section 19 of the Employment Act, and the claimant should undergo clearance.

Reasoning

The court held that employer clearance practices on termination ensure all dues are paid and debts recovered. The claimant had accepted that his dues would be applied to offset his outstanding loan. However, the respondent should have pleaded any remaining loan balance by counterclaim; none was set out.

p. 6

Legal principles established

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  • Criminal proceedings and workplace disciplinary proceedings operate under different frameworks; an acquittal in criminal proceedings does not by itself render a termination based on the same conduct unfair.
  • The standard of proof in disciplinary proceedings is on a balance of probabilities, not beyond reasonable doubt.
  • Loss of employer property in the course of an employee's work is conduct warranting summary dismissal, and an employee's failure to follow set regulations and procedures resulting in loss constitutes a valid reason for termination.
  • An employee's failure to lodge an internal appeal against termination, where the employer acted lawfully and facilitated a fair hearing, undermines the claim of unfair termination.

Court orders

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  1. 1.The claim by the Claimant is dismissed in its entirety
  2. 2.Each party shall bear their own costs

Authorities

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Legislation

  • Penal Codesection 281
  • Employment Actsection 45(1)
  • Employment Actsection 45(5)
  • Employment Actsection 41
  • Employment Actsection 47
  • Employment Actsection 19

Cases cited (6)

  • Muleka Luke Kizito Ojiambo versus The Music Copyright Society of Kenya
    [2016] eKLR
  • Peter Maina Kimani versus Mwalimu Cooperative Society, Cause No. 603(N) of 2009
  • Miriam Siwa versus Postbank Limited, Cause No. 837 of 2011
  • BIFU versus Ukulima Sacco Society Ltd, Cause No. 1109 of 2011
  • Fred Oweggi versus CFC Life Assurance, Cause No. 1001 of 2012
  • Avril Elizabeth Home for the Mentally Handicapped v Commission for Conciliation, Mediation and Arbitration & others
    (2006) 27 ILJ 1644 (LC)
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act (sections 41, 45, 47, 19) over an unfair termination claim

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (5)

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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, "Mutua Musau v Barclays Bank of Kenya Limited [2016] KEELRC 1245 (KLR)", Case Analysis (2016). Cause No. 119 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1245/eng@2016-03-23

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