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ELRCDismissedNot stated in the judgment as provided· [2019] KEELRC 2552 (KLR)

Catherine Mbuthu Bernard v Co-operative Bank of Kenya Limited [2019] KEELRC 2552 (KLR)

Employment and Labour Relations Court
21 January 2019
NMNzioki wa Makau
1,697 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court upheld a bank manager's dismissal because her careless handling of vault keys enabled a theft, and the bank followed fair disciplinary procedure.

What this practically means

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Executive summary

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The Claimant, formerly a Service (Operations) Manager at the Respondent bank's Isiolo Branch, sued for unfair and unlawful termination following her summary dismissal on 7th June 2017. Her dismissal followed a robbery on 20th March 2017 in which Kshs. 24 million was stolen from the branch vault by robbers assisted by an insider, Willy Mwangi. The Respondent alleged the Claimant negligently handed her keys to Mwangi without confirming their return, enabling the theft, and had previously been cautioned and warned over handing-over procedures and operational control lapses. The Claimant sought reinstatement or, in the alternative, compensation, damages for unfair dismissal and unfair trade practices, terminal benefits calculated at three months' salary per completed year, and reversal of interest and penalties levied on her staff loans after conversion to commercial rates. The court found that the Claimant had been warned about her key-handling, ignored the protocols in the manual, and that her carelessness enabled the theft; the Respondent was therefore entitled to initiate her removal. Procedurally, she was issued a show cause letter, invited to a disciplinary hearing with the right to be accompanied (which she declined), and given an opportunity to defend herself, satisfying Section 41 of the Employment Act. The court held she was 'not unlawfully dismissed but procedurally dismissed,' found she had not proved her case, dismissed the suit, and ordered each party to bear their own costs. Judgment was delivered at Nyeri on 21st January 2019 by Nzioki wa Makau J.

Key legal issues

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01

Whether there were valid and fair reasons for the summary dismissal

Holding

Yes - the Claimant's negligent handling of keys against known protocols enabled the theft and justified loss of confidence

Reasoning

The Claimant was custodian of the keys and had been warned about her handling of them. She handed keys to Willy Mwangi, who exploited this carelessness to stage a robbery of Kshs. 24 million. The manual protocols on key custody were familiar to her but ignored. Her conduct enabled the theft, so the Respondent was entitled to remove her from employment.

p. 3
02

Whether the procedure followed was fair under Section 41 of the Employment Act

Holding

Yes - the Claimant received a show cause letter, was invited to a disciplinary hearing with the right to be accompanied, and chose to attend alone

Reasoning

The court found the Respondent adhered to the Section 41 framework for procedural fairness. The Claimant was given the opportunity to be accompanied by a representative of her choice, declined it, attended alone, and had the opportunity to defend herself. The dismissal was therefore procedural, not unlawful.

p. 3
03

Whether the Claimant was entitled to the remedies sought

Holding

No - the suit was dismissed in its entirety

Reasoning

The Claimant did not prove her case. Loss of earnings to retirement is not recoverable under Section 17 of the Employment Act, general damages are unavailable under the statutory scheme, and the court found no remedy for the loan burden resulting from conversion to commercial rates.

p. 3

Legal principles established

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  • Procedural fairness under Section 41 of the Employment Act is satisfied where an employee is given a show cause letter, the option to be accompanied at a disciplinary hearing, and an opportunity to defend herself
  • An employee's carelessness in breach of internal control protocols that exposes an employer to risk can constitute a valid reason for summary dismissal and loss of employer confidence
  • General damages are not available for unfair termination because the Employment Act provides for an award limited to months' wages not exceeding twelve months

Court orders

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  1. 1.The suit is dismissed
  2. 2.Each party will bear their own costs

Authorities

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Legislation

  • Employment ActSection 41
  • Employment ActSection 17

Cases cited (7)

  • Rueben Ikatwa & 17 Others v Commanding Officer British Army Training Unit Kenya & Another
    [2017] eKLR
  • Abraham Nyambane Asiago v Barclays Bank of Kenya Limited
    [2015] eKLR
  • Cosmas Mwaniki Kipingazi v Barclays Bank of Kenya Limited
    [2018] eKLR
  • John Benson Githinji v Attorney General & 4 Others
    [2014] eKLR
  • Dorcas Kemunto Wainaina v IPAS
    [2018] eKLR
  • George Onyango Akuti v G4S Security Services Kenya Ltd
    [2013] eKLR
  • Cooperative Bank of Kenya Limited v Banking Insurance & Finance Union (K)
    [2017] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes (Employment Act; not expressly cited by provision in the judgment)

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, "Catherine Mbuthu Bernard v Co-operative Bank of Kenya Limited [2019] KEELRC 2552 (KLR)", Case Analysis (2019). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/2552/eng@2019-01-21

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