Julius Kirimo Mwandoro v KCB Bank Kenya Limited [2021] KEELRC 1821 (KLR)
The bottom line
#Kenya's Employment Court upheld KCB's dismissal of a long-serving employee because the bank proved one solid ground and followed fair procedure.
What this practically means
#Executive summary
#Key legal issues
#Procedural fairness of the termination
Termination was procedurally fair
The claimant was notified of the allegations by internal memos, replied in writing, was invited to a disciplinary hearing with a right to representation by a co-employee, was heard (hearing rescheduled on account of his sickness), was terminated, appealed and the appeal was declined. The court found full compliance with section 41 of the Employment Act, including notice, hearing and representation.
Whether the respondent proved the grounds for termination
Two of three grounds failed; the third ground (bouncing cheques/breach of HR circular) was established
The respondent failed to specify or prove the vernacular words allegedly uttered to the head teacher, following CMC Aviation. The ATM complaint was explained by queues, supervisor delay and the claimant's ill-health. However, the claimant admitted issuing bouncing cheques and never denied knowledge of HR circular GHRL 108/2017, so that ground was established.
Whether the dismissal was a reasonable response
Yes; the reasonable responses test applied and the respondent was entitled to dismiss on the established ground
Guided by Reuben Ikatwa, the court applied the reasonable responses test per Halsbury's Laws. Given the established third ground, the prior warning letters for poor performance and the claimant's record of service, a reasonable employer could have dismissed, and the court would not fault the respondent's decision.
Belated filing of the statement of response
Objection failed; no affidavit of service filed and the response was allowed by consent
The response was filed outside 21 days, but the claimant filed no affidavit of service, and on 09.12.2020 the court, by consent, allowed the response, documents and witness statements on record and reviewed earlier orders. The court nonetheless considered the consent in ordering each party to bear own costs.
Legal principles established
#- The employer bears the burden under sections 43(1) and 47(5) of the Employment Act to prove the reasons for termination, and must specify alleged abusive or insulting words uttered by an employee
- In adjudicating unreasonableness of an employer's conduct, the employment court applies the reasonable responses test and must not substitute its own views for those of the employer
Court orders
#- 1.The dismissal of the memorandum of claim filed on 15.07.2019
- 2.The respondent to deliver to the claimant the certificate of service within 14 days from the date of the judgment
- 3.Each party to bear own costs of the suit
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment disputes under the Employment Act, 2007
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Julius Kirimo Mwandoro v KCB Bank Kenya Limited [2021] KEELRC 1821 (KLR)", Case Analysis (2021). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1821/eng@2021-04-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.