Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCPartially AllowedCause No 355 of 2017· [2021] KEELRC 641 (KLR)

Jenipher Mwende Kiwanza v CFC Stanbic Bank Limited [2021] KEELRC 641 (KLR)

Employment and Labour Relations Court
28 October 2021
3,872 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~15 min to read original · ~4 min brief

The bottom line

#

What this practically means

#

Executive summary

#
A bank teller, Jenipher Mwende Kiwanza, was summarily blamed and dismissed after a customer, Stephen Chorio Kiai, withdrew large sums from an account that a teller at the Waiyaki Way Branch had erroneously credited with Kshs. 6,500,000 instead of Kshs. 650,000. The Claimant paid the customer Kshs. 1,000,000 on 7th May 2014 and effected a withdrawal of Kshs. 6,160,000 (converted to USD 70,000) on 8th May 2014. Following a disciplinary hearing, her employment was terminated on 30th June 2014 for failure to produce work of acceptable standard, disregarding Anti-Money Laundering guidelines and effecting an unauthorised payment. The Court framed two issues: whether the termination was lawful and fair, and whether the Claimant was entitled to the remedies sought. It found the process unfair: the Respondent kept shifting and adding charges, the disciplinary proceedings were conducted with undue speed, and the allegation of an unauthorised payment was contradicted by uncontroverted evidence of the Claimant's former Team Leader, Anthony Maina, who approved the transaction. The Court found no breach of the Anti-Money Laundering guidelines and characterised the episode as institutional failure at the tail end of a well-choreographed fraud. Reinstatement was refused as inappropriate; the Claimant was awarded twelve months' salary in compensation, one month's salary in lieu of notice, and leave pay, totalling Kshs. 870,738, with interest at court rates from the date of judgment. Backdated salary and constitutional damages claims were disallowed. The Respondent was ordered to meet the costs of the case. Judgment delivered virtually at Nairobi on 28th October 2021 by Linnet Ndolo, Judge.

Key legal issues

#
01

Whether the termination of the Claimant's employment was lawful and fair

Holding

The termination was unlawful and unfair because the charges were unclear and shifting, the disciplinary process was compromised, and the key allegation of unauthorised payment was contradicted by uncontroverted evidence that the transaction was approved by the Team Leader

Reasoning

The Respondent used the phrase 'shall include, but not limited to' regarding charges and its witnesses kept adding new breaches, leaving the Claimant unable to prepare her defence. The Claimant did not sign the minutes and there was no evidence of her alleged admission. Her former Team Leader, Anthony Maina, testified unchallenged that he approved the transaction, and the Respondent called no contradicting evidence. The Court found no breach of the Anti-Money Laundering guidelines, concluding the case was one of institutional failure for which the Claimant was wrongly blamed.

p. 6
02

Whether the Claimant breached the Anti-Money Laundering guidelines in effecting the withdrawals of 7th and 8th May 2014

Holding

No breach was found; the customer was escorted by an Executive Banking Agent who negotiated the exchange rate and the Claimant sought approval from her Team Leader

Reasoning

Clause 1.4 required caution when paying withdrawals on deposits lodged from other branches, especially where the customer was not well known. However, the customer was escorted to the Claimant's station by Faith Thiong'o, an Executive Banking Agent who had negotiated the exchange rate with the Bank Treasury, and the Claimant sought approval of the transaction from her Team Leader. The Court therefore found no breach of the Anti-Money Laundering guidelines by the Claimant.

p. 6
03

Whether the Claimant is entitled to the remedies sought

Holding

Reinstatement denied as inappropriate; compensation of 12 months' salary, one month's notice pay and leave pay awarded; backdated salary and constitutional damages refused

Reasoning

The Court found reinstatement inappropriate given the time lapse since termination. In awarding twelve months' salary it considered the Claimant's length of service, her young age, the improbability of securing a similar job, and the cavalier manner in which the Respondent handled her case. One month's salary in lieu of notice was awarded, and leave pay allowed by invoking Section 10(7) of the Employment Act in the absence of contrary leave records. Backdated salary and damages claims failed for lack of basis.

p. 6

Legal principles established

#
  • An employee facing disciplinary proceedings is entitled to prior notification of the exact charges levelled against them, as the essence of Section 41 of the Employment Act
  • Where the employer is unsure of the exact nature of the charges and keeps shifting goal posts, the employee cannot prepare a defence and the disciplinary process is compromised
  • Bankers must be held to a high standard of care but the test is whether they acted reasonably in their line of duty
  • In the absence of leave records to the contrary, Section 10(7) of the Employment Act is invoked and the claim for leave pay is allowed

Court orders

#
  1. 1.Judgment entered in favour of the Claimant as follows: 12 months' salary in compensation Kshs. 738,000; 1 month's salary in lieu of notice Kshs. 61,500; Leave pay for 1 year Kshs. 53,300; Prorata leave for 5 months Kshs. 17,938; Total Kshs. 870,738
  2. 2.The amount to attract interest at court rates from the date of judgment until payment in full
  3. 3.The Respondent to meet the costs of the case

Authorities

#

Legislation

  • Employment ActSection 41(1) and (2)
  • Employment ActSection 10(7)
  • Constitution of KenyaArticle 41
  • Human Resources Consequent Management GuideClauses 1.1, 1.4, 9.10, 9.12, 9.16

Cases cited (2)

  • Rebecca Ann Maina & 2 others v Jomo Kenyatta University of Agriculture and Technology
    [2014] eKLR
  • Agnes Murugi Mwangi v Barclays Bank of Kenya Limited
    [2013] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act and Article 41 of the Constitution (employment dispute)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Jenipher Mwende Kiwanza v CFC Stanbic Bank Limited [2021] KEELRC 641 (KLR)", Case Analysis (2021). Cause No 355 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/641/eng@2021-10-28

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