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ELRCAllowedNot stated (originally High Court Civil Division, filed 28/11/2000; transferred to ELRC 2014)· [2021] KEELRC 1740 (KLR)

Josiah Wanjohi v National Bank of Kenya Limited [2021] KEELRC 1740 (KLR)

Employment and Labour Relations Court
18 May 2021
MNMathews N. Nduma
4,320 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~17 min to read original · ~4 min brief

The bottom line

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A Kenyan court awarded a former bank manager Kshs. 17.7 million because his dismissal letter gave reasons he was never allowed to defend against.

What this practically means

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Executive summary

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The plaintiff, employed by the defendant bank from 1970 and rising from clerk to Branch Manager, was dismissed on 22 June 1999 after 29 years of service, by a letter citing gross negligence. He sued in the High Court in November 2000 claiming special damages of Kshs. 12,742,461 (notice pay, pension contributions, leave pay and pension benefits under clause 10 of the Pension Fund) and general damages. The defendant pleaded that the plaintiff committed fraud, dishonesty and negligence causing losses of about Kshs. 140 million, and that the dismissal was justified. The suit was partly heard by Waki J and Waweru J before transfer to the ELRC in 2014, where it started de novo before Nduma J. The plaintiff completed cross-examination; the defendant repeatedly failed to attend and filed no evidence or submissions, and the defence case was closed by order of Wasilwa J in February 2020. The court, applying the repealed Employment Act, Cap 226, held that the reasons pleaded in the defence (fraud and massive loss) were never raised in the dismissal letter, which cited only gross negligence; that the plaintiff was denied documents and a disciplinary hearing; and that the defendant failed to justify the dismissal under section 17 of Cap 226. Awarding the plaintiff's unchallenged claims, the court entered judgment for Kshs. 17,742,461, comprising Kshs. 12,742,461 in special damages and Kshs. 5,000,000 general damages, plus interest at court rates and costs.

Key legal issues

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01

Lawfulness of the dismissal under the repealed Employment Act, Cap 226

Holding

The dismissal was unlawful; the reasons in the defence (fraud, dishonesty, Kshs.140 million loss) were never raised in the dismissal letter, which cited only gross negligence, and the defendant called no evidence to justify the dismissal.

Reasoning

Section 17 of Cap 226 permitted summary dismissal for gross misconduct on lawful cause. The dismissal letter cited only gross negligence, while the defence pleaded fraud and massive loss. The plaintiff was not given documents or a disciplinary hearing to answer the allegations. The defendant adduced no evidence, so the court found the plaintiff had proved on a balance of probabilities that the dismissal was unjustified and unlawful.

p. 5
02

Entitlement to pension and terminal benefits

Holding

The plaintiff, a member of the defendant's pension fund for 29 years, was awarded his full pension, both contributions, notice pay and leave pay as specially claimed and unchallenged.

Reasoning

Unchallenged evidence showed the plaintiff contributed to the pension fund for 29 years and the defendant made matching contributions. The Local Leave Register showed 156 untaken leave days. The pay slip was undisputed. The court awarded each head of special damages as claimed in the plaint, less amounts already paid.

p. 5
03

General damages for unlawful dismissal under the repealed law

Holding

The court exercised its common law discretion to award Kshs. 5,000,000 general damages, distinguishing authorities decided under the Employment Act, 2007.

Reasoning

The plaintiff served loyally for 29 years and was dismissed on false and unproved allegations without notice or full benefits. He suffered financial embarrassment, stress-induced diabetes, and loss of employability at age 50. The court relied on Dr. Ezekiel Nyangoya Okemwa v Kenya Marine and Fisheries Research Institute, which was also decided under the repealed law, and declined to follow Pamela Lutta v Mumias Sugar Company as decided under the 2007 Act.

p. 6

Legal principles established

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  • An employer who dismisses an employee must justify the dismissal as lawful; where the reasons pleaded in defence differ from those in the dismissal letter, the dismissal is unjustified.
  • Unchallenged sworn testimony, where the defendant calls no evidence, may suffice to prove a claim on a balance of probabilities.

Court orders

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  1. 1.Judgment entered for the plaintiff against the defendant for Kshs. 446,469.00 being 3 months' salary in lieu of notice
  2. 2.Kshs. 404,075.90 being plaintiff's own pension contribution
  3. 3.Kshs. 404,075.90 being 100% defendant's pension contribution
  4. 4.Kshs. 375,535.00 being payment in lieu of leave days not taken
  5. 5.Kshs. 12,295,992.00 being pension benefits under clause 10 of the Defendant's Pension Fund less Kshs. 1,183,686.80 already paid
  6. 6.Kshs. 5,000,000 general damages for pain and suffering
  7. 7.Total award Kshs. 17,742,461
  8. 8.Interest at court rates from date of judgment till payment in full
  9. 9.Costs of the suit to the plaintiff

Authorities

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Legislation

  • Evidence Actsections 107 and 108
  • Employment Act (repealed)section 17
  • Employment Act, 2007not specified
  • Civil Procedure Actsection 18
  • Civil Procedure RulesOrder 21 rule 1
  • Constitution of KenyaArticles 159(2)(d) and 48

Cases cited (2)

  • Dr. Ezekiel Nyangoya Okemwa v Kenya Marine and Fisheries Research Institute
    [2016] eKLR
  • Pamela Lutta v Mumias Sugar Company
    [2017] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction following transfer from the High Court in 2014

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Josiah Wanjohi v National Bank of Kenya Limited [2021] KEELRC 1740 (KLR)", Case Analysis (2021). Not stated (originally High Court Civil Division, filed 28/11/2000; transferred to ELRC 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1740/eng@2021-05-18

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