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ELRCPartially AllowedCause No. E012 of 2019 (Memorandum of Claim dated 29th January 2019)· [2021] KEELRC 1389 (KLR)

James Mogaka v KCB Bank Kenya Limited [2021] KEELRC 1389 (KLR)

Employment and Labour Relations Court
2 June 2021
4,413 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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KCB could not prove it held a disciplinary hearing, so a Kenyan court ordered the bank to pay a former manager 12 months' salary.

What this practically means

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Executive summary

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The Claimant, an employee of KCB Bank Kenya Ltd since 1995 and last serving as Manager Card Settlements, challenged his suspension and termination following an internal audit report of 31st March 2018 and a forensic audit (Report No. 533 of 2018) which attributed losses of about Kshs. 349 million in the Card Operations Unit to him and others. He was suspended on half salary on 12th September 2018, issued with a show cause letter, subjected to a disciplinary hearing on 30th October 2018 and terminated by letter dated 16th November 2018 on six grounds. He claimed the termination was substantively and procedurally unfair, complaining of denial of the disciplinary policy manual, contradictory loss figures, absence of prior warnings, and failure to prove payment of terminal dues; he sought declaration of unfair termination, quashing of the disciplinary process, reinstatement or compensation, and a certificate of service. The Respondent maintained the process was fair and lawful. The court held that although the Respondent asserted a disciplinary hearing was conducted, it produced no proof of it; under Sections 41 and 43 of the Employment Act the burden lay on the employer, and the failure to avail the crucial evidence rendered the termination unfair. Reinstatement was declined because of the breakdown in relations. The court ordered maximum compensation of 12 months' salary under Section 49, reduced the termination to normal termination with no loss of benefits, allowed the Claimant to continue enjoying preferential loan rates, awarded costs and interest.

Key legal issues

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01

Procedural fairness of termination

Holding

Termination was unfair because the Respondent failed to prove that a disciplinary hearing took place

Reasoning

Section 41 of the Employment Act guarantees an employee safeguards of a fair hearing before termination. The Respondent asserted it applied its policies and carried out a disciplinary hearing, but produced no minutes or proof of the hearing. Under Section 43 the burden shifts to the employer to show fairness, and failing that evidence the termination is unfair. The Claimant had also refused to sign minutes that were never tendered in evidence.

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02

Substantive fairness / valid reasons for termination

Holding

The court found the termination unfair, awarded maximum compensation and reduced the termination to normal termination

Reasoning

The Claimant argued the audit report did not name him, figures of the alleged loss were contradictory, and the reasons in the termination letter differed from the charges. The court did not make extensive findings on substantive reasons but, having found the process unfair, exercised its discretion under Section 49 to award maximum compensation of 12 months' salary computed on his salary at termination.

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Remedy of reinstatement

Holding

Reinstatement refused due to breakdown of the employment relationship

Reasoning

Although reinstatement is an available remedy, the court held that a lot of bad blood had developed between the parties since the 2018 termination, making reinstatement inappropriate. The court instead awarded maximum compensation, directed that the Claimant continue enjoying preferential loan rates, and allowed offsetting of the compensation against outstanding loans.

p. 4

Legal principles established

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  • Where an employer asserts a disciplinary hearing took place but fails to provide evidence of it, the burden under Section 43 shifts to the employer and the termination is unfair
  • Reinstatement is inappropriate where employment relations have irretrievably broken down; maximum compensation under Section 49 may be awarded instead

Court orders

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  1. 1.The termination of the Claimant's employment be reduced to normal termination
  2. 2.The Claimant to receive 12 months salary as compensation
  3. 3.Costs of the suit to the Claimant
  4. 4.Interest at court rates on the compensation sum from date of judgment till payment in full
  5. 5.The Claimant to continue enjoying the preferential loan rates until he defaults on loan repayments, and may opt to offset the compensation against his outstanding loans

Authorities

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Legislation

  • Employment ActSection 45(1) and (2)
  • Employment ActSection 43
  • Employment ActSection 41
  • Employment ActSection 49
  • Employment Act 2007Section 40
  • Employment Act 2007Section 35(6)
  • Evidence Act, Cap 80 Laws of KenyaSection 119
  • Evidence Act Cap 80 Laws of KenyaSection 11

Cases cited (9)

  • Walter Ogal Anuro v Teachers Service Commission
    [2013] eKLR
  • Fredrick Saundu Amolo v Principal Namanga Mixed Day Secondary School & 2 Others
    [2014] eKLR
  • Jane Nyokabi Karungu v Manpower Services (K) Limited
    [2017] eKLR
  • Alice M'mboga Ogolla v Nyayo Tea Zones Development Authority
    [2017] eKLR
  • Nicholas Otieno Aloo v G4S Security Services (K) Limited
    [2016] eKLR
  • Wilson Reuben Sibiya v Kenya National Examinations Council
    [2013] eKLR
  • Anthony Mkala Chitavi v Malindi Water & Sewerage Co. Ltd
    [2013] eKLR
  • Miriam Siwa v Kenya Post Office Savings Bank Limited
    [2014] eKLR
  • Republic v Kenyatta University Ex-Parte Gladys Nyambura Njogu
    [2011] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act and Labour Relations Court Act (first-instance employment claim)

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, "James Mogaka v KCB Bank Kenya Limited [2021] KEELRC 1389 (KLR)", Case Analysis (2021). Cause No. E012 of 2019 (Memorandum of Claim dated 29th January 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1389/eng@2021-06-02

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