Abram Kamau Kimani v Guaranty Trust Bank (K) Limited [2019] KEELRC 1785 (KLR)
The bottom line
#Even with CCTV proof of theft, a Kenyan employer must still follow fair disciplinary procedure or the dismissal becomes unlawful.
What this practically means
#Executive summary
#Key legal issues
#Whether the respondent proved a valid and fair reason for the dismissal
Yes - the CCTV clip established attempted theft of Kshs.1,000 from the client
The court viewed the CCTV clip and was satisfied that the claimant pushed a Kshs.1,000 note that had been blown off the counting machine under the machine, intending to steal it from the client. The clip, produced unobjected with a certificate, discharged the employer's burden of proof on a balance of probability under sections 43 and 45 of the Employment Act.
Whether the respondent followed a fair procedure before dismissing the claimant
No - the procedure under section 41 was not followed, rendering the dismissal unfair
The claimant's unrebuted evidence was that he was summoned without notice of a disciplinary agenda, denied the company of another employee of his choice, not shown the investigation report or CCTV footage, and his first written response was torn. The respondent's witness, who joined after the dismissal and did not participate in the hearing, could not rebut this. The employer bore the burden of proving procedural fairness and failed.
What remedies flow from the unfair dismissal
One month's salary in lieu of notice, 3 months' salary compensation under section 49(1), and the claimed leave pay of Kshs.47,419
Having declared the dismissal unfair, the court exercised its discretion under section 49(1) of the Employment Act, awarding notice pay and 3 months' compensation. The quantum was reduced because the claimant served briefly and contributed to his dismissal through misconduct. Leave was computed at 23.5 outstanding days, but the court awarded only the Kshs.47,419 specifically prayed for. Broader damages were refused for lack of legal or contractual basis.
Legal principles established
#- Under section 45(2) of the Employment Act, the employer bears the burden of proving both a valid and fair reason and a fair procedure for termination
- An employee dismissed for misconduct must be heard in the presence of another employee of his choice, with representations considered, as required by section 41 of the Employment Act
Court orders
#- 1.Declaration that the summary dismissal of the claimant was unfair and therefore unlawful
- 2.Judgment entered for the claimant against the respondent in the sum of Kshs.327,419 comprising notice pay of Kshs.70,000, compensation of Kshs.210,000 and leave pay of Kshs.47,419
- 3.The said sum to be paid subject to statutory deductions
- 4.Costs of the suit to the claimant plus interest at court rates from the date of judgment
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (sections 41, 43, 45 and 49 applied)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Abram Kamau Kimani v Guaranty Trust Bank (K) Limited [2019] KEELRC 1785 (KLR)", Case Analysis (2019). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1785/eng@2019-04-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.