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ELRCPartially AllowedCause No 895 of 2016· [2019] KEELRC 1483 (KLR)

Joseph Oduor Otieno v National Bank of Kenya Limited [2019] KEELRC 1483 (KLR)

Employment and Labour Relations Court
28 May 2019
3,020 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

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A Kenyan bank employee fired over alleged fraud won Kshs. 931,086 because his employer couldn't prove the fraud or hold a fair disciplinary hearing.

What this practically means

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Executive summary

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The Claimant, a bank employee employed from 1st April 2008, sued the Respondent bank for wrongful and unfair termination following his suspension on 24th August 2015 over alleged involvement in fraud and his termination by letter dated 13th November 2015 on grounds of loss of confidence. He sought declarations of unprocedural termination and violation of Articles 41, 47 and 27 of the Constitution, 12 months' salary as compensation, general damages, notice pay, accrued leave pay, a favourable recommendation letter and costs. The Respondent admitted the employment relationship but justified the termination on allegations of collusion in fraud causing a loss of Kshs. 2,819,994, asserting that a disciplinary process was followed. The court framed three issues: validity of the reason for termination, adherence to due process, and entitlement to remedies. It found that the Respondent failed to prove the fraud or the Claimant's link to the alleged loss as required by Section 43 of the Employment Act. On procedure, the minutes produced as proof of a disciplinary hearing did not show the Claimant was invited, attended, or answered charges, contrary to Section 41. Both limbs of Section 45(2) therefore failed, rendering the termination unfair and unjustified. The court awarded 8 months' salary (Kshs. 827,632) as compensation plus one month's notice pay (Kshs. 103,454), totalling Kshs. 931,086, directed issuance of a Certificate of Service, and awarded costs plus interest at court rates. General damages, leave pay and a favourable recommendation letter were not granted.

Key legal issues

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01

Whether the Respondent had a valid reason to terminate the Claimant

Holding

The Respondent did not prove the alleged fraud or the Claimant's link to the loss of Kshs. 2,819,994, hence no valid reason existed.

Reasoning

The termination letter cited loss of confidence over fraud causing a loss of Kshs. 2,819,994. The suspension letter did not specify the alleged fraud or who mentioned the Claimant. Section 43 obliges the employer to prove the reasons for termination. The Respondent failed to prove the fraud or the Claimant's participation, so the termination lacked a valid reason.

p. 4
02

Whether due process under Section 41 of the Employment Act was followed

Holding

No fair hearing was accorded; the minutes did not show the Claimant attended or was invited to a disciplinary hearing.

Reasoning

The Respondent relied on minutes of a meeting of 23/10/2015, but the minutes named other staff as the subject of discussion and did not show the Claimant attended or defended himself. There was no letter inviting the Claimant to a hearing. Section 41 requires explanation of the reasons, hearing of representations and the right to a representative. The Claimant was therefore denied a fair hearing.

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03

Whether the termination was unfair under Section 45 of the Employment Act

Holding

The termination was unfair and unjustified, failing both the valid-reason and fair-procedure limbs of Section 45(2).

Reasoning

Section 45(2) renders a termination unfair if the employer fails to prove a valid and fair reason and a fair procedure. Having found neither valid reason nor due process, the court concluded the termination was unfair and unjustified, entitling the Claimant to remedies.

p. 5
04

Remedies for the unfair termination

Holding

The court awarded 8 months' salary as compensation and one month's salary in lieu of notice, plus a Certificate of Service, but declined general damages and leave pay.

Reasoning

Exercising discretion under Section 49 of the Employment Act framework, the court awarded 8 months' salary (8 x 103,454 = 827,632) plus one month's notice pay (103,454), totalling Kshs. 931,086, and directed issuance of a Certificate of Service. No general damages for constitutional violations or accrued leave pay were granted.

p. 5

Legal principles established

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  • Under Section 43 of the Employment Act the employer bears the burden of proving the reason or reasons for termination, failing which the termination is unfair.
  • Section 41 of the Employment Act requires notice of a disciplinary hearing, explanation of the reasons, and an opportunity to be heard and call witnesses before termination on grounds of misconduct.
  • Minutes relied on to prove a disciplinary hearing must show the charges against the employee and the employee's responses, and evidence that the employee attended.

Court orders

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  1. 1.The Respondent to pay the Claimant compensation of 8 months' salary for the unfair termination (8 x 103,454 = 827,632)
  2. 2.The Respondent to pay the Claimant one month's salary in lieu of notice (103,454)
  3. 3.Total award of Kshs. 931,086/= to the Claimant
  4. 4.The Respondent to issue the Claimant with a Certificate of Service
  5. 5.The Respondent to pay costs of the suit plus interest at Court rates with effect from the date of the judgment

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 41, 47, 27
  • Employment Act, 2007Sections 41, 42(1), 43, 44, 45(2)
  • Employment and Labour Relations Court Act, 2011Section 12(3)(vii)
  • Labour Relations Act of South Africa

Cases cited (5)

  • Mary Mutanu Mwendwa Vs Ayuda
    (2013) eKLR
  • Le Monde Luggage cc t/a Pakwells Petze Vs Commissioner G. Dun and Others
    Appeal Case No. JA 65/205
  • Agnes Murugi Mwangi Vs Barclays Bank of Kenya Limited
    (2013) eKLR
  • Kenya Oilfield Services Ltd vs Peter Njoroge
    1985
  • Geoffrey Mwangi Wanjohi versus Mitchell Cotts Kenya Limited
    (2002) eKLR
Jurisdiction invoked
Employment and Labour Relations Court Act, 2011 (including Section 12(3)(vii) on reinstatement) read with the Employment Act, 2007

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, "Joseph Oduor Otieno v National Bank of Kenya Limited [2019] KEELRC 1483 (KLR)", Case Analysis (2019). Cause No 895 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1483/eng@2019-05-28

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