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ELRCPartially AllowedNot stated in the extract· [2021] KEELRC 1237 (KLR)

Patrick Kamau Mbugua v Equity Bank Limited [2021] KEELRC 1237 (KLR)

Employment and Labour Relations Court
16 July 2021
1,549 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The claimant, employed by the respondent bank from 10.03.2010 as a Senior Relationship Credit Officer, was terminated by letter dated 10.10.2016 following allegations of irregularities in the loan appraisal and security valuation for a customer's micro loan of Kshs. 700,000. He sought a declaration of unfair termination, reinstatement, terminal dues of Kshs. 883,839, interest, a certificate of service and costs. The respondent denied the claim and prayed for dismissal. The respondent complied with section 41 of the Employment Act by issuing a show cause letter and conducting a disciplinary hearing, so the dispute turned on the validity of the reason for termination. Under sections 43 and 47(5), the burden lay on the respondent, but it opted not to call a witness; the claimant's unrebutted evidence of due diligence, and that of CW2 (the customer) that the loan was fully repaid, led the Court to find the reasons invalid and the termination unfair. Counsel conceded the certificate of service and 18 leave days (Kshs. 44,689). Applying section 49, the Court awarded six months' salary (Kshs. 387,300) for unfair termination and one month's pay in lieu of notice (Kshs. 64,550), reducing compensation because the claimant's expression of regret in his reply amounted to partial contribution. Reinstatement was refused: the three-year limitation under section 12 of the Employment and Labour Relations Court Act, 2011 had lapsed, and the sensitive nature of banking business disclosed no exceptional circumstances. Judgment of Kshs. 496,539 (less PAYE) was entered, payable by 01.09.2021 with interest thereafter, together with the certificate of service and costs.

Key legal issues

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01

Validity of the reason for termination

Holding

The termination was substantively unfair because the respondent failed to discharge the burden of proving a valid reason

Reasoning

The respondent alleged irregularities in loan appraisal and security valuation. Although it complied with section 41 procedure (notice and hearing), it called no witness at trial. The claimant's detailed reply to the show cause letter, his evidence of due diligence, and CW2's confirmation that the loan was fully repaid went unrebutted. Accordingly the reasons were found unjustified and invalid as at the time of termination.

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02

Quantum of compensation under section 49

Holding

Six months' salary (Kshs. 387,300.00) awarded for unfair termination plus one month's pay in lieu of notice (Kshs. 64,550.00)

Reasoning

The Court weighed the claimant's over six years of service with a clean record, his desire to continue in employment, and the aggravating factor of termination despite his efforts to ensure the loan was repaid, against his contribution through his expression of regret in the reply to the show cause letter.

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03

Reinstatement

Holding

Reinstatement refused

Reasoning

The termination letter was dated 10.10.2016 and judgment was delivered on 16.07.2021, beyond the three-year limitation in section 12 of the ELRC Act, 2011. Even apart from limitation, the sensitive nature of the banking business and the absence of exceptional circumstances did not favour reinstatement.

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04

Undisputed claims

Holding

Certificate of service and 18 leave days (Kshs. 44,689.00) granted as conceded

Reasoning

Counsel for the respondent conceded at the hearing that the certificate of service and leave days were not in dispute, so the Court granted them as claimed.

p. 1

Legal principles established

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  • Once procedural fairness under section 41 is established, the employer bears the burden under sections 43 and 47(5) of the Employment Act to prove that the reason for termination was valid and justified, and failure to call evidence discharges the claimant's case
  • An employee's expression of regret in a reply to a show cause letter may amount to contribution justifying a reduction in compensation under section 49
  • Reinstatement under section 12 of the ELRC Act is subject to the three-year limitation and to exceptional circumstances, considering the sensitive nature of the industry

Court orders

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  1. 1.Declaration that the termination of the claimant's contract of service by the respondent was wrongful, unfair and unlawful
  2. 2.Respondent to pay the claimant Kshs. 496,539.00 (less PAYE) by 01.09.2021, failing which interest at court rates from the date of judgment until full payment
  3. 3.Respondent to deliver the claimant's certificate of service within 30 days from the date of judgment
  4. 4.Respondent to pay the claimant's costs of the suit
Jurisdiction invoked
Employment Act, 2007 (ss. 41, 43, 47(5), 49) and Employment and Labour Relations Court Act, 2011 (s. 12)

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, "Patrick Kamau Mbugua v Equity Bank Limited [2021] KEELRC 1237 (KLR)", Case Analysis (2021). Not stated in the extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1237/eng@2021-07-16

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