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ELRCPartially AllowedCause No 249 of 2014· [2020] KEELRC 588 (KLR)

Geoffrey Sadat Otana v Equity Bank Limited [2020] KEELRC 588 (KLR)

Employment and Labour Relations Court
30 July 2020
2,511 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 clerk's dismissal after a cash shortage, but ruled the employer couldn't backdate the dismissal and owed him 13 days' salary.

What this practically means

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Executive summary

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The Claimant, employed by Equity Bank Limited from 7th November 2006 as a Banking Clerk and later working as an Accountant at the Changamwe Branch, was a co-custodian of the Strong Room and ATMs. Following a shortage of Kshs. 1,232,000 discovered in ATM2 and the Strong Room in May 2011, he and a colleague were arrested and charged with theft by servant in Criminal Case No. 1755 of 2011, in which he was acquitted on 8th January 2013. He had earlier been summarily dismissed by letter dated 13th June 2011, backdated to 30th May 2011. He claimed general damages for unlawful termination, one month's salary in lieu of notice, salary for June 2011 and the cost of defending the criminal case. The Respondent maintained the dismissal was justified and counterclaimed for Kshs. 516,437.50 as the Claimant's portion of the loss and Kshs. 43,937.28 as an outstanding staff loan. The court framed three issues: the lawfulness and fairness of the dismissal, entitlement to remedies, and the counterclaim. It held the Respondent had a valid reason for dismissal under Section 43 of the Employment Act; that the criminal acquittal did not bar disciplinary action, applying Geoffrey Kiragu Njogu and Clement Karuri; and that the Claimant, by refusing to appear at the Head Office as instructed, locked himself out of procedural fairness safeguards. However, the dismissal could not be backdated, so salary for 13 days of June 2011 (Kshs. 23,833) was awarded. General damages, notice pay and criminal defence costs were dismissed. The counterclaim succeeded only on the admitted loan of Kshs. 43,937.28, the loss claim failing for want of evidence. Each party was ordered to bear its own costs.

Key legal issues

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01

Whether the dismissal was lawful and fair

Holding

The dismissal was for a valid reason under Section 43 of the Employment Act; the Claimant forfeited procedural fairness by refusing to attend the Head Office as instructed, so the dismissal stood except that it could not be backdated.

Reasoning

The Claimant was a dual custodian of the Strong Room and ATMs; a Kshs. 1 Million transfer was initiated using his password, exceeding his limit, and the cash count revealed shortages. As a banker, he ought to have moved decisively to prove his innocence if his password had been stolen. Instead he ignored instructions to appear at Head Office, citing the Procedures Manual. Citing Agnes Murugi Mwangi, the court held banks demand high integrity from employees. The criminal acquittal did not immunise him from disciplinary action.

p. 4
02

Relationship between criminal proceedings and internal disciplinary proceedings

Holding

An acquittal in a criminal case does not render an employee immune to employer disciplinary action; the two are distinct processes with different procedural and proof requirements.

Reasoning

Relying on the Court of Appeal decisions in Geoffrey Kiragu Njogu v Public Service Commission & 2 others and Clement Karuri v Kenya Ports Authority, the court affirmed that no necessary nexus exists between criminal proceedings and internal disciplinary proceedings even on the same facts, so the Claimant's acquittal in Criminal Case No. 1755 of 2011 did not invalidate the dismissal.

p. 4
03

Whether the Claimant was entitled to the remedies sought

Holding

General damages and salary in lieu of notice were dismissed; salary for 13 days of June 2011 (Kshs. 23,833) was awarded because the backdating to 30th May 2011 was unjustified; the claim for cost of defending the criminal case failed for want of evidence.

Reasoning

Having upheld the substantive validity of the dismissal, the court found no basis for general damages or notice pay. However, since employment subsisted until the dismissal letter of 13th June 2011, the backdating to 30th May 2011 had no basis and salary for the intervening 13 days was awarded. The criminal defence costs claim lacked evidentiary support.

p. 4
04

Whether the Respondent proved its counterclaim

Holding

The counterclaim was allowed only to the extent of the admitted outstanding staff loan of Kshs. 43,937.28; the claim for the portion of the loss (Kshs. 516,437.50) failed for want of evidence.

Reasoning

The Respondent led no evidence to support the counterclaim on the loss attributable to the Claimant. However, the Claimant admitted owing the staff loan of Kshs. 43,937.28, so judgment on the counterclaim was limited to that admitted amount.

p. 5

Legal principles established

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  • There is no necessary nexus between internal disciplinary proceedings and criminal proceedings even on the same facts; an acquittal does not bar employer disciplinary action.
  • Banks must demonstrate a high degree of integrity and financial probity, a standard extending to their employees.
  • An employee who fails to present himself as instructed by the employer locks himself out of the procedural fairness safeguards and cannot later complain he was not heard.
  • A dismissal cannot lawfully be backdated before the date of the dismissal letter; wages are due up to the date of the letter.

Court orders

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  1. 1.Judgment entered in favour of the Claimant in the sum of Kshs. 23,833 being salary for 13 days in June 2011
  2. 2.Judgment entered in favour of the Respondent in the sum of Kshs. 43,937.28 being outstanding loan balance
  3. 3.Each party to bear their own costs

Authorities

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Legislation

  • Employment ActSection 43

Cases cited (3)

  • Agnes Murugi Mwangi v Barclays Bank of Kenya Limited
    [2013] eKLR
  • Geoffrey Kiragu Njogu v Public Service Commission & 2 others
    [2015] eKLR
  • Clement Karuri v Kenya Ports Authority
    [2018] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (first-instance employment claim and counterclaim)

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, "Geoffrey Sadat Otana v Equity Bank Limited [2020] KEELRC 588 (KLR)", Case Analysis (2020). Cause No 249 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/588/eng@2020-07-30

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