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ELRCPartially AllowedCase No 988 of 2013· [2019] KEELRC 2239 (KLR)

Donna M A Abong’o v Kenya Post Office Savings Bank [2019] KEELRC 2239 (KLR)

Employment and Labour Relations Court
12 February 2019
NMNzioki wa MakauRSRadido Stephen
1,744 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~7 min to read original · ~4 min brief

The bottom line

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A Kenyan court awarded a dismissed bank employee nearly one million shillings because her employer blamed her for a cash loss without properly investigating it.

What this practically means

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Executive summary

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The Claimant, a clerical officer employed by the Respondent bank from 2000, was dismissed on 16 July 2012 following a cash shortage of Kshs. 700,000/- discovered in the safe at the Jogoo Road branch on 20 March 2012. She was a key holder to the safe while the acting branch manager held the combination. After a show cause letter, refusal to foot 50% of the loss, interdiction on half salary, and a disciplinary meeting, she was dismissed and her appeal was unsuccessful. She claimed unfair and unlawful dismissal, seeking 12 months' salary as compensation, notice pay, withheld half salary, service pay for 12 years, damages, costs and a certificate of service. The Respondent justified the dismissal as gross misconduct for breaching dual custody procedures. The court found the dismissal unjustified: no audit report or statement of the co-custodian was produced, the Claimant never signed for safe balances, and the acting branch manager had accessed the safe alone in breach of bank policy. The loss was not properly investigated and blame was rushed onto a junior officer. The court allowed the claim in part, awarding one month's salary in lieu of notice (Kshs. 78,904/-), half salary withheld for three months (Kshs. 118,356/-), 12 months' salary as compensation (Kshs. 946,848/-), costs of the suit, and a certificate of service under Section 51 of the Employment Act. Service pay was refused as the Claimant belonged to a retirement benefit scheme and had drawn part of her pension.

Key legal issues

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01

Whether the dismissal was founded on a valid and fair reason

Holding

No valid reason existed; the Respondent failed to prove the Claimant's culpability

Reasoning

The Claimant was said to be a joint safe custodian holding keys while the acting branch manager held the combination. No audit report or statement of the co-custodian was presented. The Claimant never signed for the safe balances, and the acting branch manager accessed the safe alone in contravention of bank policy. The loss was not properly investigated and the Respondent rushed to apportion blame against a junior officer who maintained her innocence.

p. 2
02

Entitlement to remedies

Holding

Notice pay, withheld half salary and 12 months' compensation awarded; service pay refused

Reasoning

Having found the dismissal unlawful, the court awarded one month's salary in lieu of notice, the half salary withheld during interdiction for three months, and the maximum 12 months' compensation. Service pay was denied because the Claimant was a member of a retirement benefit scheme and had already drawn part of her pension. A certificate of service was granted under Section 51.

p. 2

Legal principles established

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  • An employer must prove a valid and fair reason and fair procedure for termination; failure to follow its own operational procedures and to properly investigate a loss means the dismissal lacks a valid reason

Court orders

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  1. 1.One month's salary in lieu of notice – Kshs. 78,904/-
  2. 2.Half salary withheld for 3 months – Kshs. 118,356/-
  3. 3.12 months' salary as compensation – Kshs. 946,848/-
  4. 4.Costs of the suit
  5. 5.A certificate of service in terms of Section 51

Authorities

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Legislation

  • Employment ActSection 44(4)(c)
  • Employment ActSection 45(a)
  • Employment ActSection 41
  • Employment ActSection 47
  • Employment ActSection 47(5)
  • Employment ActSection 51

Cases cited (6)

  • Bamburi Cement Limited v William Kilonzi
    [2016] eKLR
  • Walter Ogal Anuro v Teachers Service Commission
    [2013] eKLR
  • Thamuda H. Mwaruwa v Kenya Ports Authority
    [2017] eKLR
  • Fulgene Sunza Masai v Kenya Revenue Authority
    [2014] eKLR
  • Agnes Kavata Mbiti v Housing Finance Company Limited
    [2017] eKLR
  • Benson Roliano Wemali v National Environment Management Authority (NEMA)
    [2015] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act (not expressly cited in the judgment excerpt)

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, "Donna M A Abong’o v Kenya Post Office Savings Bank [2019] KEELRC 2239 (KLR)", Case Analysis (2019). Case No 988 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/2239/eng@2019-02-12

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