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ELRCDismissedNot stated in the judgment as supplied· [2019] KEELRC 496 (KLR)

Kennedy Kioko Wambua v Consolidated Bank Of Kenya [2019] KEELRC 496 (KLR)

Employment and Labour Relations Court
1 November 2019
BOBYRAM ONGAYA
741 words in judgment
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The bottom line

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A Kenyan bank employee who caused a fraudulent loan lost his unfair dismissal case because his own misconduct outweighed any procedural flaws.

What this practically means

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Executive summary

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The claimant, employed by the respondent bank since 2007 and rising to Credit Assistant at the Embu Branch, was summarily dismissed by letter dated 31.12.2013 on grounds of facilitating a fraudulent customer (Marvine Kiarie Gathu) to open an account into which fraudulently obtained funds were disbursed, breaching the Credit KYC policy, failing to ensure loan proceeds were paid to the vendor, and taking on a customer from another branch without formal approval. He sued for general and exemplary damages for unlawful termination and violation of constitutional rights; the respondent sought dismissal of the suit with costs. The Court found the reason for dismissal established under sections 43, 45 and 47(5) of the Employment Act, 2007: the claimant's own evidence showed he processed a loan from Meru Branch without his Branch Manager's authority, recommended a customer he did not know to open an account, and the respondent lost Kshs.4,600,000.00 when the customer defaulted and could not be traced. On procedure, although the claimant alleged no show-cause notice was served, the Court found he attended the disciplinary hearing, knew the allegations, and fully replied, with his replies showing culpability. The Court held that even if termination was procedurally unfair, the claimant fully contributed to his dismissal and was undeserving of any award under section 49; his constitutional claim was unfounded. The suit was dismissed with costs to the respondent on 1 November 2019 at Nairobi.

Key legal issues

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01

Validity of the reason for dismissal under section 43

Holding

The reason for termination - misconduct in facilitating a fraudulent customer and breaching the Credit KYC policy - was established.

Reasoning

The claimant, by his own evidence, processed a loan emanating from Meru Branch without his Branch Manager's authority, recommended a customer he did not know to open an account, and the respondent lost Kshs.4,600,000.00 when the customer defaulted and could not be traced. The Court found the reason established under sections 43, 45 and 47(5) of the Employment Act.

p. 2
02

Procedural fairness - show-cause notice

Holding

Even if termination was unfair for want of a show-cause notice, the claimant's full contribution to the dismissal defeated any award.

Reasoning

The claimant attended the disciplinary hearing, knew the particulars of the allegations, fully replied, and his replies showed culpability. The Court therefore held that any procedural deficiency was immaterial given the established misconduct, rendering the claimant undeserving of an award under section 49 and his constitutional claim unfounded.

p. 2

Legal principles established

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  • Where an employee fully contributed to the dismissal and the reason for dismissal is established, the employee is undeserving of any award under section 49 of the Employment Act even if procedural fairness was wanting.
  • Attendance at a disciplinary hearing with knowledge of the allegations and an opportunity to reply can cure want of a show-cause notice for purposes of procedural fairness.

Court orders

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  1. 1.Judgment entered for the respondent against the claimant for dismissal of the suit with costs

Authorities

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Legislation

  • Employment Act, 2007section 43
  • Employment Act, 2007section 45
  • Employment Act, 2007section 47(5)
  • Employment Act, 2007section 49
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (sections 43, 45, 47(5), 49)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "Kennedy Kioko Wambua v Consolidated Bank Of Kenya [2019] KEELRC 496 (KLR)", Case Analysis (2019). Not stated in the judgment as supplied. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/496/eng@2019-11-01

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