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ELRCPartially AllowedNot stated in the judgment as provided· [2019] KEELRC 2390 (KLR)

Abdallah Abdi Ali & another v First Community Bank Limited [2019] KEELRC 2390 (KLR)

Employment and Labour Relations Court
4 February 2019
4,261 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~17 min to read original · ~4 min brief

The bottom line

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A Kenyan court blocked National Bank from raising a fired employee's staff loan rate, because the bank couldn't prove it followed redundancy procedures correctly.

What this practically means

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Executive summary

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The Claimant, Abdalla Abdi Ali, moved the Employment and Labour Relations Court by notice of motion dated 4th May 2018 seeking urgent interim reliefs against his former employer, National Bank of Kenya, following his termination on grounds of redundancy effective 4th December 2016. He alleged the redundancy was unfair and unprocedural, that his staff-rate financing facilities were unilaterally converted to commercial rates after termination, and that the bank had issued a statutory notice of sale over his charged properties in Kwale. He sought injunctions restraining sale and rate variation, protection from CRB listing, production of employee records, a certificate of service and reinstatement. The respondent, through the affidavit of its Head of Human Resource, justified the redundancy as a genuine restructuring to address high non-performing loans and cost-to-income ratio, and maintained the staff rates were contractual and lapsed with employment. Applying the Giella v Cassman Brown principles, the court found a prima facie case because the respondent produced no documentation of the redundancy procedure, held that irreparable harm would follow from the rate variation given the whiff of unlawfulness in the termination, and found the balance of convenience favoured the applicant since the bank remained secured. The application succeeded in part: the bank was restrained from converting the first facility's staff rate of 5% to the commercial rate of 14% and directed to credit the applicant's account with the difference, but the applicant remained bound to service the loans, with liberty to the bank to realise securities and list him with the CRB upon default. Parties were directed to fix the main claim for hearing within 60 days. Judgment delivered at Nairobi on 4th February 2019 by Maureen Onyango, Judge.

Key legal issues

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01

Prima facie case on unfair redundancy

Holding

A prima facie case was established because the respondent attached no documentation showing the redundancy procedure followed

Reasoning

The Claimant alleged the redundancy process was unfair and did not comply with section 40 of the Employment Act. The respondent's Replying Affidavit attached no documentation of the procedure followed, depriving the court of the benefit of perusing the termination process. On the Giella test, the court therefore found a prima facie case warranting further inquiry at trial.

p. 5
02

Irreparable harm from conversion of staff rates to commercial rates

Holding

Denying the orders would cause irreparable harm not compensable by damages, and the bank remains secured

Reasoning

The Claimant had a legitimate expectation to continue servicing the facilities at preferential rates tied to his employment. With the rates converted and a statutory notice of sale issued, the court found the harm not compensable in damages, guided by the principle that an employer may not withdraw special loan facilities where the termination's lawfulness is in question. The bank remains covered by the securities and suffers no prejudice.

p. 5
03

Balance of convenience

Holding

The balance of convenience favours the applicant since loss of the property would be greater to him while the respondent remains covered by securities

Reasoning

Applying the test in Pius Kipchirchir Kogo v Frank Kimeli Tenai, the court weighed the inconvenience to each party. Loss of the charged properties would be a greater loss to the applicant, whereas the respondent retains the securities it can realise if the claim ultimately fails. The comparative mischief therefore favoured granting relief preserving the staff rate.

p. 5

Legal principles established

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  • An employer's right to withdraw or vary special loan terms on termination of employment is withheld where there is a whiff of unlawfulness in the termination
  • Employment-linked benefits follow the cause where employment is unfairly terminated
  • Definition of a prima facie case in civil applications

Court orders

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  1. 1.The respondent is restrained, by itself, servants and/or agents, from reviewing and effecting the financing rate of interest payable in respect of the first facility at the staff rate of 5% to the commercial financing rate of 14%, pending the determination of the main Claim
  2. 2.The respondent is directed to readjust and credit the applicant's account with the difference between the staff rate and the commercial rate
  3. 3.The applicant is under obligation to service the loans, failing which the respondent is at liberty to realise the securities and to list the applicant with the Credit Reference Bureau (CRB) as mandated by law
  4. 4.Parties are directed to comply with all pre-trial requirements and fix the case for hearing within the next 60 days so that the main claim can be concluded expeditiously

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 10, 21, 22, 23, 27, 28, 40, 41, 48, 50, 159(2)(a)
  • Employment and Labour Relations Court ActSections 12, 40, 45, 49, 50
  • Employment and Labour Relations Court (Procedure) Rules, 2016Rules 17 and 28
  • Land ActSection 103
  • Employment Act, 2007Sections 40, 49(4), 51, 74, 20(4)

Cases cited (10)

  • Crispus Mogonchi Gisemba vs Tausi Assurance Company Limited
    (2017) eKLR
  • Banking Insurance & Finance Union (Kenya) Vs National Bank of Kenya
    (2016) eKLR
  • Leland I Salano Vs Intercontinental Hotel
    (2013) eKLR
  • Peter Mutiya Musembi & Another Vs National Bank of Kenya
    ELRC No. 1777 of 2014
  • Kenya Breweries Ltd Vs Okeyo
    (2002) EA 109
  • Vincent Muema Mututku vs Rift Valley Railways (Kenya) Limited
    (2015) eKLR
  • Giella Vs Cassman Brown & Company Ltd
    (1973) EA 358
  • Mrao Ltd v First American Bank of Kenya Ltd & 2 Others
    [2003] eKLR
  • Abraham Nyambane Asiago Vs Barclays Bank of Kenya Limited
    (2013) eKLR
  • Pius Kipchirchir Kogo v Frank Kimeli Tenai
    [2018] eKLR
Jurisdiction invoked
Articles 10, 21, 22, 23, 27, 28, 40, 41, 48, 50, 159(2)(a) of the Constitution of Kenya, 2010; Sections 12, 40, 45, 49 and 50 of the Employment and Labour Relations Court Act; Rules 17 and 28 of the ELRC (Procedure) Rules, 2016

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, "Abdallah Abdi Ali & another v First Community Bank Limited [2019] KEELRC 2390 (KLR)", Case Analysis (2019). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/2390/eng@2019-02-04

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