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ELRCOtherCause (not stated in judgment; employment claim filed 18 July 2014)· [2018] KEELRC 2601 (KLR)

Kivanga v Prime Bank Limited (Cause 1208 of 2014) [2018] KEELRC 2601 (KLR)

Employment and Labour Relations Court
30 November 2018
595 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The Claimant, formerly a Senior Officer in charge of human resources, payments and expenditure registers at Prime Bank Ltd, sued the bank on 18 July 2014 for unfair termination and breach of contract. His claim was dismissed on 15 May 2018 after two adjournments, when his advocate holding brief had no instructions, and the bank's Counterclaim proceeded to hearing on 22 October 2018 with no appearance for the Claimant. The Respondent called two witnesses. Its Head of Internal Audit testified that investigations launched in 2011 established that the Claimant and another employee altered genuinely approved expenditure vouchers to show higher figures and pocketed the difference, and raised fictitious vouchers without requisite approvals. The bank produced debit vouchers, expenditure reimbursement claim forms, expenditure registers prepared and authorised by the Claimant, an Investigations Report fixing responsibility for a loss of Kshs 4,611,490/-, and a Kenya Police Document Examiner's report opining that handwriting and signatures on the vouchers matched the Claimant's samples. The court noted the Claimant faced a pending criminal case of stealing by servant arising from the same activities. Finding the Respondent's case straightforward and noting that no Reply to the Counterclaim was filed, the court held that the Respondent had met the legal and evidential burden of proof. On 30 November 2018 judgment was entered for the Respondent against the Claimant for Kshs 4,611,490/- with costs and interest from that date.

Key legal issues

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01

Whether the Respondent proved the fraud alleged in the Counterclaim

Holding

The Respondent proved on a balance of probabilities, through its Internal Audit investigations, a Police Document Examiner's report, and the vouchers/registers prepared and authorised by the Claimant, that the Claimant fraudulently caused a loss of Kshs 4,611,490/-

Reasoning

The Respondent's Head of Internal Audit testified that investigations established the Claimant and another employee altered genuinely approved expenditure vouchers to show higher figures and pocketed the difference, and raised fictitious vouchers without requisite approvals. Documentary evidence including debit vouchers, expenditure registers, an Investigations Report and a Kenya Police Document Examiner's handwriting report connected the Claimant to the fraud. The Claimant filed no Reply to the Counterclaim and did not appear at the hearing.

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02

Burden of proof on an uncontroverted counterclaim

Holding

The Respondent discharged both the legal and evidential burden of proof, warranting grant of the relief sought

Reasoning

The court required more than the absence of a Reply; it examined the evidence adduced by the Respondent's two witnesses and their submissions. Satisfied that the audit investigations, the document examiner's opinion and the primary documents laid the blame at the door of the Claimant, the court found the burden discharged and entered judgment for the full counterclaimed amount with costs and interest.

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Legal principles established

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  • A party who bears the legal and evidential burden of proof on a counterclaim and discharges it is entitled to the relief sought, particularly where the counter-pleading is uncontroverted

Court orders

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  1. 1.Judgment entered for the Respondent against the Claimant in the sum of Kshs 4,611,490/-
  2. 2.Costs of the Counterclaim awarded to the Respondent
  3. 3.Interest on the decretal sum from the date of judgment (30 November 2018)
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment and Labour Relations Court Act (claim for unfair termination of employment and breach of contract; counterclaim)

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, "Kivanga v Prime Bank Limited (Cause 1208 of 2014) [2018] KEELRC 2601 (KLR)", Case Analysis (2018). Cause (not stated in judgment; employment claim filed 18 July 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/2601/eng@2018-11-30

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