Jeremiah Muendo Kalebu v Barclays Bank of Kenya Limited [2019] KEELRC 2493 (KLR)
The bottom line
#A Kenyan bank cashier lost his unfair dismissal case because his employer followed proper disciplinary procedure, and he was ordered to repay Kshs.959,820 in staff loans.
What this practically means
#Executive summary
#Key legal issues
#Procedural fairness of termination under section 41 of the Employment Act
The termination complied with section 41: reasons were given, the Claimant was invited with the right to accompaniment, was heard, and had an appeal heard and upheld
RW1 testified the incident was investigated and the Claimant suspended, invited to a hearing and informed of his right to attend with a colleague. The Claimant conceded in cross-examination that the termination letter stated reasons, the invitation letter disclosed the right to accompaniment, and he had ample notice of the hearing. His appeal was heard with a union representative and the dismissal was upheld. The court therefore held the Respondent met the section 41 standard.
Extension of suspension beyond 30 days under the CBA
The extension was valid since Clause A5(c)(i) of the CBA permitted extension at the employer's discretion, and the extension facilitated conclusive investigations
The Claimant's suspension was extended for a total of 55 days beyond the initial period. Clause A5(c)(i) of the CBA expressly allowed extension at the employer's discretion. Given the seriousness of the fraud allegations and their repercussions, conclusive investigations were necessary. The Claimant was also entitled to half salary during the extended period, which was implied by the extension letters' term that 'terms and conditions remain the same.'
Jurisdiction over the Respondent's counterclaim for an outstanding staff loan
The court had jurisdiction because the debt arose from benefits accorded to the Claimant by virtue of the employer-employee relationship, and the counterclaim succeeded as the debt was admitted
Although the loan was commercial in nature, it arose from the employment relationship and fell within the court's exclusive jurisdiction under section 12 of the Employment Act, as supported by the USIU and JSC v Shollei line of authority against splitting issues between courts. The Claimant admitted owing Kshs.960,000 and only pleaded inability to pay, so judgment was entered for the Respondent in the sum of Kshs.959,820.17.
Legal principles established
#- Burden of proving unfair termination rests on the employee, while the burden of justifying the grounds for termination rests on the employer
- The Employment and Labour Relations Court has jurisdiction over a counterclaim arising from privileges accorded by virtue of the employer-employee relationship
- Suspension is a right of the employer and its duration is within the employer's control where investigations are ongoing
Court orders
#- 1.The Claimant's case is dismissed in its entirety.
- 2.Judgment is entered for the Respondent against the Claimant in the sum of Kshs.959,820.17 on the counterclaim.
- 3.Each party to bear its own costs.
- Jurisdiction invoked
- Section 12(1) of the Employment Act, 2007 (exclusive original jurisdiction over employment disputes); Article 162(2) of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Jeremiah Muendo Kalebu v Barclays Bank of Kenya Limited [2019] KEELRC 2493 (KLR)", Case Analysis (2019). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/2493/eng@2019-01-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.