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ELRCDismissedMemorandum of Claim (grievants Samuel Mwangi Kanubi and Moses Nandwa Sharon)· [2018] KEELRC 403 (KLR)

Banking, Insurance and Finance Union (K) v Bank of India [2018] KEELRC 403 (KLR)

Employment and Labour Relations Court
30 November 2018
3,873 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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Kenya's Employment Court dismissed two bankers' unfair dismissal claim because the older, weaker law applied when they were fired in 2005, not today's protections.

What this practically means

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Executive summary

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The Claimant, a trade union, sued on behalf of two members, Samuel Mwangi Kanubi and Moses Nandwa Sharon, clerks employed by Bank of India in 1993 and 1991 respectively. Both were arrested on 8 April 2005 in connection with fraudulent Electronic Fund Transfers and credit notes involving approximately Kshs. 37.99 Million, charged in Criminal Case No. 666 of 2005, and on 27 April 2005 were summarily dismissed from employment on grounds of suspected involvement in the fraud. Both were later acquitted for lack of evidence. The union alleged wrongful and unprocedural dismissal, relying principally on Sections 41 and 45 of the Employment Act 2007, and sought declarations, notice pay, compensation and pecuniary loss exceeding Kshs. 10 Million each. The court agreed with the Respondent that the cause of action arose on 27 April 2005, so the repealed Employment Act Cap 226 and Trade Disputes Act Cap 234 governed, and the Employment Act 2007 could not apply retrospectively. Under the repealed law, no disciplinary hearing was required, and Section 17(g) permitted summary dismissal on reasonable and sufficient grounds of suspicion of a criminal offence against the employer; the grievants' charging in the criminal case satisfied that threshold, and their subsequent acquittal did not invalidate the dismissals. The court found no pleaded or contractual duty to observe natural justice. Reinstatement would be impractical given the grievants' ages, and new prayers introduced in submissions were dismissed as parties are bound by their pleadings. The claim was dismissed with no orders for costs on 30 November 2018.

Key legal issues

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01

Whether the summary dismissal of the grievants on 27 April 2005 was wrongful

Holding

The dismissal was not wrongful; the applicable law was the repealed Employment Act Cap 226 and Trade Disputes Act Cap 234, under which summary dismissal on reasonable and sufficient grounds of suspicion of a criminal offence was permitted without a disciplinary hearing.

Reasoning

The cause of action arose on 27 April 2005, so the Employment Act 2007 did not apply retrospectively. Section 17(g) of Cap 226 permitted summary dismissal on reasonable and sufficient grounds of suspicion of a criminal offence against the employer. The grievants had been charged in Criminal Case No. 666 of 2005, constituting such grounds. The repealed Act and the contracts of employment imposed no duty to observe natural justice before dismissal, and their acquittal came after dismissal.

p. 5
02

Whether the Claimants are entitled to the reliefs sought

Holding

No. Having failed to prove wrongful dismissal, no reinstatement or compensation is available; the additional prayers introduced in submissions are also dismissed as unpleaded.

Reasoning

Under Section 15 of the Trade Disputes Act, reinstatement or compensation is only available where the court determines an employee was wrongfully dismissed. That threshold was not met. Reinstatement was in any event impractical given the grievants' ages (48 and 50 at hearing). The court also held that a party is bound by its pleadings and refused to entertain new prayers introduced only in submissions.

p. 5

Legal principles established

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  • The cause of action for wrongful/unfair termination arises on the date of termination as communicated by the dismissal letter, and the law applicable is that in force at that date.
  • Under the repealed Employment Act Cap 226, an employer could summarily dismiss an employee on reasonable and sufficient grounds of suspicion of having committed a criminal offence against the employer, without a disciplinary hearing.

Court orders

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  1. 1.The new prayers introduced in the Claimant's submissions are dismissed as parties are bound by their pleadings.
  2. 2.The claim is dismissed with no orders for costs.

Authorities

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Legislation

  • Employment Act 2007Sections 12, 41, 45
  • Employment Act (repealed), Cap 226Sections 14, 16, 17(g)
  • Trade Disputes Act (repealed), Cap 234Sections 15(1), 15(2)
  • Labour Relations ActParagraph 2(4) of the Fifth Schedule

Cases cited (17)

  • Mary Chemweno Kiptui v Kenya Pipeline Limited
  • Bamburi Cement Ltd v William Kilonzi
    Civil Appeal No. 62 of 2015 [2015] eKLR
  • Unilever Tea Kenya Limited v John Kememia Gitau
    [2017] eKLR
  • Independent Electoral and Boundaries Commission & Another v Stephen Mutinda Mule & 3 Others
    [2014] eKLR
  • David Ngugi Waweru v Attorney General & Another
    [2017] eKLR
  • Attorney General & Another vs Andrew Maina Githinji & Another
    [2016] eKLR
  • Drummond Jackson vs. Britain Medical Association
    (1970) 2 WLR 688
  • Read vs. Brown
    (1889), 22 QBD 128
  • Letang vs. Cooper
    [1964] 2 All ER 929
  • Benjamin Wachira case
  • Hilarion Mwabolo vs Kenya Commercial Bank
    [2013] eKLR
  • Ezekiel Nyangoya Okemwa V Kenya Marine & Fisheries Research Institute
    [2016] eKLR
  • Kenya Revenue Authority V. Menginya Salim Murgani
    [2010] eKLR
  • Addis v. Gramophone Co.
    [1909] AC 488
  • Major Wilfred Kyallo Kangulyu v. Tetrapak Limited
    [2014] eKLR
  • Kenya Ports Authority v. Festus Kipkorir Kiprotich
    [2015] eKLR
  • Kenya Airways Limited v Aviation & Allied Workers Union Kenya & 3 Others
    [2014] eKLR
Jurisdiction invoked
Industrial Court jurisdiction over trade disputes under the Trade Disputes Act Cap 234 (dispute referred before commencement of the Labour Relations Act)

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, "Banking, Insurance and Finance Union (K) v Bank of India [2018] KEELRC 403 (KLR)", Case Analysis (2018). Memorandum of Claim (grievants Samuel Mwangi Kanubi and Moses Nandwa Sharon). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/403/eng@2018-11-30

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