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ELRCDismissedCause No 166 of 2013· [2019] KEELRC 811 (KLR)

Samson Kiprop Maluei v Kenya Commercial Bank Limited [2019] KEELRC 811 (KLR)

Employment and Labour Relations Court of Kenya
20 September 2019
ANAbuodha J. N.
1,230 words in judgment
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The bottom line

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Kenya's Employment Court upheld KCB's dismissal of an Operations Manager for missing an account restriction during a funds transfer, ruling the process fair.

What this practically means

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Executive summary

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The claimant, employed by the respondent in 1992 as a clerk and later promoted to Operations Manager, was assigned to the respondent's Juba (South Sudan) office. His services were terminated on 10th June 2010 following an internal investigation into the irregular transfer of Sudanese pounds 1,274,000 and 89,000 from a customer's restricted account to an account at Citibank. He claimed the termination was unlawful, that he played no role in the transaction, and that he was punished for the actions of other officers without being heard. The respondent pleaded that the claimant's contract had terminated in 2009 when he was simultaneously employed by KCB Sudan Limited, a separate legal entity governed by Sudanese law, hence no jurisdiction; in the alternative, that the termination was for gross misconduct following lawful procedure. In evidence, the claimant admitted verifying the cheque and statement manually but denied knowledge of the system or the account restriction. The respondent's witness testified that account restrictions would pop up during inputting and only the Branch Manager could override them. The court held that the reasons for termination were those the employer genuinely believed to exist, applied the reasonable-employer test, found the claimant's failure to detect the account restriction odd given his verification role, and held the reasons justifiable. On procedure, the show-cause letter, recorded statement and online responses were adequate and no oral hearing was necessary. The claim was dismissed with costs.

Key legal issues

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01

Justifiability of the reason for termination

Holding

The termination was justified. The claimant, as Operations Manager responsible for verifying instructions against mandate, failed to detect the restriction on the account from which funds were transferred.

Reasoning

The claimant admitted the funds were transferred and that his role included verification of instructions against the mandate held. He verified the cheque and statement manually but failed to detect the account restriction. Applying the reasonable-employer test, the respondent genuinely believed the claimant was negligent, causing pecuniary loss including return of funds remitted to Citibank. The court found the reasons for termination justifiable.

p. 2
02

Fairness of the procedure followed

Holding

The procedure was fair: the claimant was issued a show-cause letter, responded to it, recorded a statement with the security team, and responded online; no oral hearing was necessary.

Reasoning

The claimant was issued a show-cause letter which he admitted responding to. He recorded a statement with the internal security team and responded to the notice to show cause online. The court held these written responses were adequate in the circumstances, and that an oral hearing was therefore unnecessary, satisfying the procedural fairness requirement.

p. 2

Legal principles established

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  • The reasons for termination are those which the employer genuinely believed to exist and which caused the termination; the court will not interfere where a reasonable employer would consider termination the appropriate response
  • The court should not over-analyze the employer's reason for termination nor substitute its own view of what constitutes reasonable grounds for dismissal
  • An oral hearing is not always necessary where the employee has been given an opportunity to respond in writing and has done so

Court orders

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  1. 1.The claim is found to be without merit and is dismissed
  2. 2.The claimant to pay the respondent's costs
Jurisdiction invoked
Employment and labour relations jurisdiction of the Employment and Labour Relations Court (Cause filed in the ELRC at Nairobi)

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, "Samson Kiprop Maluei v Kenya Commercial Bank Limited [2019] KEELRC 811 (KLR)", Case Analysis (2019). Cause No 166 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/811/eng@2019-09-20

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