Jenipher Mwende Kiwanza v CFC Stanbic Bank Limited [2021] KEELRC 641 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the termination of the Claimant's employment was lawful and fair
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
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.
Whether the Claimant breached the Anti-Money Laundering guidelines in effecting the withdrawals of 7th and 8th May 2014
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
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.
Whether the Claimant is entitled to the remedies sought
Reinstatement denied as inappropriate; compensation of 12 months' salary, one month's notice pay and leave pay awarded; backdated salary and constitutional damages refused
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.
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.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.The amount to attract interest at court rates from the date of judgment until payment in full
- 3.The Respondent to meet the costs of the case
- 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.