Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCPartially AllowedCause No. 2309 of 2014· [2018] KEELRC 1275 (KLR)

Kennedy Kimaiyo Kiplagat v Co-operative Bank of Kenya Limited [2018] KEELRC 1275 (KLR)

Industrial Court of Kenya (Employment and Labour Relations Court)
20 July 2018
DMD. K. Njagi MareteMOMaureen Onyango
3,072 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

#

A Kenyan court ruled Co-operative Bank unfairly fired an employee because the disciplinary panel members had a conflict of interest, awarding him Kshs. 940,343.

What this practically means

#

Executive summary

#
The claimant, employed by the respondent bank as a clerk from 2002 and later in its Property and Supplies Department, was suspended on 28th May 2014 and required to show cause why disciplinary action should not be taken for negligent procurement allegedly causing a loss of Kshs. 17,133,362.25. He attributed the fault to the respondent's Expenditure Management Committee, which had unconditionally approved the impugned procurements, and complained that the disciplinary committee included members (Anthony Mburu and Samuel Birech) who had also participated in approving the procurement. He was summarily dismissed on 14th July 2014 and his appeal went unanswered. He sought declarations of constitutional and statutory violations, nullification of the dismissal, reinstatement or twelve months' salary, compensation, damages and costs. The respondent justified the dismissal, asserting the claimant's own failures of duty. The court, determining the matter on written submissions, framed three issues: whether the termination was wrongful, unfair and unlawful; entitlement to relief; and costs. It held the termination unlawful: the respondent failed to adequately rebut the claimant's position on responsibility for the procurement; the disciplinary committee's composition presented a fatal conflict of interest compromising fairness; and the respondent ignored the claimant's appeal. The court declared the disciplinary proceedings and summary dismissal unfair, unprocedural, unlawful and unconstitutional, and awarded one month's pay in lieu of notice and six months' compensation, totalling Kshs. 940,343.00, with costs to the claimant. Reinstatement was not ordered.

Key legal issues

#
01

Whether the termination of the claimant's employment was wrongful, unfair and unlawful

Holding

The termination was unfair and unlawful: the reasons for dismissal were not adequately rebutted as resting solely with the claimant, the disciplinary committee suffered a fatal conflict of interest, and the claimant's appeal was ignored, breaching section 41 of the Employment Act, 2007 and Articles 27, 41 and 47 of the Constitution.

Reasoning

The court found the claimant's case of non-compliance with substantive and procedural fairness unrebutted. The respondent merely denied that responsibility lay with the Expenditure Management Committee rather than the claimant. Two members of the disciplinary committee (Anthony Mburu and Samuel Birech) had also served on the committee that approved the impugned procurement and did not declare their conflict of interest. The respondent's failure to respond to the appeal aggravated the unfairness. The court concluded the termination violated section 41 of the Employment Act, 2007.

p. 5
02

Whether the claimant is entitled to the relief sought

Holding

Yes. The claimant was awarded a declaration of unfair, unprocedural and unlawful dismissal, one month's pay in lieu of notice, and six months' compensation for unlawful termination, totalling Kshs. 940,343.00.

Reasoning

Having found unlawful termination, the court held the claimant entitled to relief. Reinstatement was not ordered; instead the court granted the declaration together with one month's notice pay and six months' salary as compensation for unfair termination, computed at the claimant's monthly salary of Kshs. 134,339.00. Costs were awarded to the claimant against the respondent.

p. 5
03

Who bears the costs of the claim

Holding

The respondent was ordered to bear the costs of the claim.

Reasoning

The claimant succeeded on the claim of unlawful termination; costs naturally followed the event. The court ordered that the costs of the claim be borne by the respondent.

p. 5

Legal principles established

#
  • A disciplinary committee whose members are conflicted, having been involved in the very procurement under investigation, fatally compromises the fairness of the proceedings and renders any resulting dismissal unfair.
  • Failure to conduct disciplinary proceedings in accordance with section 41 of the Employment Act, 2007, including hearing and considering the employee's representations, results in unlawful termination of employment.
  • A claimant who succeeds in proving unlawful termination is entitled to the relief sought, including compensation under the Employment Act.

Court orders

#
  1. 1.A declaration that the disciplinary proceedings and consequential summary dismissal of the employment of the claimant by the respondent was unfair, unprocedural, unlawful, unconstitutional and contrary to the rules of natural justice.
  2. 2.One (1) month's pay in lieu of notice of Kshs. 134,339.00.
  3. 3.Six (6) months' compensation for unlawful termination of employment of Kshs. 806,034.00.
  4. 4.Total award of Kshs. 940,343.00.
  5. 5.The costs of this application shall be borne by the respondent.

Authorities

#

Legislation

  • Constitution of Kenya, 2010Article 2(1) & (4), 3(1), 10, 27(1), 35(1)(b) & (2), 41(1) & (2)(a), 47, 50(1)
  • Employment Act, 2007Sections 35(1), 41, 41(2), 44(3) & (4), 45(2)(a) & (b), 45(5), 47(5)

Cases cited (4)

  • Mc Kinley v B.C Tel
    (2001) 2 S.C.R 161
  • Nicholas Otinyu Muruka v Equity Bank Limited
    (2013) eKLR
  • Eric Karanja Gakenyo & Another vs. Samson Gathimba
    (2011) eKLR
  • George Onyango Akuti v G4S Securtiy Services Kenya Ltd
    [2013] eKLR
Jurisdiction invoked
Employment and labour relations jurisdiction of the Industrial Court (first-instance Statement of Claim under the Employment Act, 2007 and Articles 27, 35, 41, 47 and 50 of the Constitution of Kenya, 2010)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Kennedy Kimaiyo Kiplagat v Co-operative Bank of Kenya Limited [2018] KEELRC 1275 (KLR)", Case Analysis (2018). Cause No. 2309 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1275/eng@2018-07-20

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