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ELRCPartially AllowedConsolidated suits (Criminal Case No. CMR 1809 of 2012 Kisii related; suits consolidated at Employment and Labour Relations Court)· [2019] KEELRC 2246 (KLR)

Michael Getanda MakenI & 3 others v Ecobank Kenya Limited [2019] KEELRC 2246 (KLR)

Employment and Labour Relations Court
14 February 2019
MNMathews N. Nduma
1,843 words in judgment
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The bottom line

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A Kenyan court ruled four bank employees were unfairly fired without reasons or a hearing, awarding them notice pay, compensation, interest and costs.

What this practically means

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Executive summary

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Four bank employees who worked as ATM card and PIN custodians were summarily dismissed following allegations of theft of ATM cards and fraudulent withdrawals totalling Kshs 890,000 from customers' accounts. They were charged in Kisii but the criminal cases were terminated and they were acquitted under Section 210 of the CPC for lack of evidence. Their consolidated claims sought declarations that the summary dismissal was unlawful and unfair, payment in lieu of one month's notice, interest and costs. The matter proceeded by written submissions on a consent order, with no oral testimony. The court framed three issues: whether the dismissals were for valid reasons, whether a fair procedure was followed, and whether the claimants were entitled to the reliefs sought. The court found that the standard-format dismissal letters gave no reasons and merely referred to audit investigations; that none of the claimants was required to show cause or subjected to a disciplinary hearing; and that the criminal acquittals did not cure these defects. The claimants discharged their burden under Section 47(5) of the Employment Act, and the respondent failed to justify the dismissals under Sections 43 and 47(5) or demonstrate compliance with Section 41. The dismissals were held to violate Sections 41, 43 and 45 of the Employment Act. The court awarded each claimant one month's notice pay and compensation under Section 49(1)(c) and (4) - four months' salary for Michael Getanda Makeni and eight months' salary each for Warren Malesi, Evelyne Kiage and Seth Michael Okello - plus interest at court rates from the date of judgment and costs of the suit. Judgment was delivered by Mathews N. Nduma, Judge, on 14 February 2019.

Key legal issues

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01

Whether the summary dismissals were for valid reasons

Holding

No valid reason was given; the dismissal letters cited no reason and merely referred to audit investigations and suspension.

Reasoning

The letters of summary dismissal were in a standard format, gave no reason, and referred only to audit investigations and the suspension without disclosing outcomes or whether any claimant was implicated. The respondent failed to discharge the onus under Sections 43 and 47(5) of the Employment Act to justify the dismissal.

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02

Whether a fair procedure was followed

Holding

No fair procedure was followed; the claimants were never subjected to a disciplinary hearing or required to show cause.

Reasoning

The claimants were suspended and then summarily dismissed without being required to show cause or answer disciplinary charges. Criminal cases against them were terminated under Section 210 of the CPC for lack of evidence. The court found this violated Section 41 of the Employment Act, relying on Kenfright (EA) Limited vs Benson K. Nguli (2016) eKLR.

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Whether the claimants are entitled to the reliefs sought

Holding

Claimants entitled to notice pay and compensation under Section 49(1)(c) and (4) of the Employment Act.

Reasoning

Having found the dismissals unlawful and unfair, the court awarded each claimant one month's notice pay and compensation equivalent to four months' salary for Michael Getanda Makeni and eight months' salary each for Warren Malesi, Evelyne Kiage and Seth Michael Okello, considering humiliation, false criminal charges, loss of career prospects and legal fees incurred.

p. 3

Legal principles established

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  • An employer must demonstrate a valid reason and a fair procedure under Sections 43, 45 and 41 of the Employment Act before summarily dismissing an employee; acquittal under Section 210 of the CPC does not displace the employee's right to a disciplinary hearing.

Court orders

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  1. 1.Judgment entered in favour of the claimants and against the respondent
  2. 2.Michael Getanda Makeni: Kshs 77,473 in lieu of one month's notice and Kshs 309,892 compensation
  3. 3.Warren Malesi: Kshs 84,358 in lieu of one month's notice and Kshs 674,864 compensation
  4. 4.Evelyne Kiage: Kshs 55,000 in lieu of one month's notice and Kshs 440,000 in compensation
  5. 5.Seth Michael Okello: Kshs 72,000 in lieu of one month's notice and Kshs 576,000 in compensation
  6. 6.Interest at court rates from date of judgment till payment in full
  7. 7.Costs of the suit to the claimants

Authorities

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Legislation

  • Penal Code / Criminal Procedure Code (referred to as CPC)Section 210
  • Employment ActSections 41, 43, 45, 47(5), 49(1)(c) and (4)

Cases cited (1)

  • Kenfright (EA) Limited vs Benson K. Nguli
    (2016) eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (Sections 41, 43, 45, 47(5), 49(1)(c) and (4))

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, "Michael Getanda MakenI & 3 others v Ecobank Kenya Limited [2019] KEELRC 2246 (KLR)", Case Analysis (2019). Consolidated suits (Criminal Case No. CMR 1809 of 2012 Kisii related; suits consolidated at Employment and Labour Relations Court). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/2246/eng@2019-02-14

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