Mary Njambi Njenga v Equity Bank Kenya Limited [2019] KEELRC 464 (KLR)
The bottom line
#A Kenyan court upheld a banker's dismissal for fraud but ordered her employer to pay Kshs.762,312 in withheld salary, leave pay, and costs.
What this practically means
#Executive summary
#Key legal issues
#Fairness of indefinite suspension without pay
Suspension beyond 30 days was lawful because police investigations were involved, an exception in clause 15.7.2(19)
The claimant relied on clause 15.7.2(19) limiting suspension to 30 days. However, her own pleadings and exhibits showed she was under investigation by the Anti-Banking Fraud Police. The clause expressly excepts cases involving police investigations, so the extended suspension fell within the contract and was neither unfair nor irregular.
Procedural fairness of the summary dismissal under sections 41 and 45 of the Employment Act
The dismissal was procedurally fair: notice and hearing were effectively served by registered mail and through the claimant's advocates
The dismissal letter recorded a show-cause notice dated 11.11.2016 and a hearing set for 02.12.2016, which the claimant ignored. The respondent proved posting by registered mail to her last confirmed postal address and email service on her then advocates, who she confirmed were instructed to act. Her non-response was therefore her own doing, satisfying sections 41 and 45.
Substantive justification for the dismissal
The respondent had a genuine reason to dismiss based on the preliminary investigation report, CBK and DPP correspondence
The preliminary investigation report of 29.06.2016 detailed the discrepancies constituting the fraud on 7 accounts. The Central Bank's Banking Fraud Investigation Department found the claimant did not act alone and was not entirely responsible, but was implicated. The Court held the details of the fraud were established, the claimant was implicated, and with no reply to the show-cause notice the respondent had a genuine reason to dismiss.
Remedies and counterclaim
Reinstatement and compensation refused; salary during suspension (Kshs.660,000) and leave pay (Kshs.102,312) awarded; service pay refused; counterclaim dismissed
Having found the dismissal fair, reinstatement and 12 months' compensation collapsed. Clause 15.7.2(20) entitled the claimant to pay up to the last day worked during suspension (6 months x Kshs.110,000). RW confirmed 19.5 days' leave due for 2016. NSSF membership defeated service pay under section 35. The counterclaim failed for want of pleaded particulars and apportionment of culpability.
Legal principles established
#- Under clause 15.7.2(19), suspension may exceed 30 days where police investigations are involved
- Service of a show-cause notice and disciplinary hearing invitation by registered mail to the employee's last postal address and upon her advocates satisfies section 41 of the Employment Act
- A counterclaim for financial loss must plead specific particulars of the employee's culpability and evidence must apportion the amount due
Court orders
#- 1.The respondent to pay the claimant Kshs.762,312.00 by 15.12.2019 failing interest at court rates from the date of filing the amended memorandum of claim till full payment
- 2.Dismissal of the counterclaim with costs
- 3.The respondent to pay the claimant's costs of the claim
- 4.The respondent to issue the claimant a certificate of service as per section 51 of the Employment Act, 2007
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (first-instance employment claim and counterclaim)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mary Njambi Njenga v Equity Bank Kenya Limited [2019] KEELRC 464 (KLR)", Case Analysis (2019). Cause No 2593 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/464/eng@2019-11-01
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.