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ELRCDismissedNotice of Motion dated 20.12.2019 (ELRC, Nairobi)· [2021] KEELRC 2031 (KLR)

Lilian Rhoda Adhiambo v Barclays Bank of Kenya [2021] KEELRC 2031 (KLR)

Employment and Labour Relations Court
4 March 2021
3,097 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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Kenya's ELRC ruled that a dismissed bank employee loses preferential staff loan rates once employment ends, refusing to stop the bank from charging higher interest.

What this practically means

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Executive summary

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A former bank employee applied by Notice of Motion dated 20 December 2019 for interlocutory injunctions restraining the Respondent bank from charging interest on her staff mortgage and loan facilities at 8.5% plus a 4% margin instead of the preferential staff rates of 6% and 7%, restraining threats of CRB listing, and compelling computation and refund of allegedly overcharged interest. She argued she had a legitimate expectation to service the loans at staff rates until repayment in full, and that her termination on 28 November 2019 was wrongful and followed a sham hearing. The Respondent maintained the loan terms allowed it to vary rates on termination of employment, that she remained contractually indebted, and that she had not met the injunctive threshold. The Court framed the main issue as whether the Applicant had met the threshold for an interlocutory injunction under Giella v Cassman Brown. It found she had not: she had not sought reinstatement, distinguishing BIFU and Asiago where claimants had; and the Staff Loan Terms and Conditions expressly provided that preferential rates cease immediately employment terminates for whatsoever reason unless the Bank agrees otherwise in writing. Relying on Damondar Jihabhai via National Bank v Hamida Bana, Evans Oliver Olwali and Nguruman, the Court held that without a prima facie case the remaining Giella limbs need no consideration, and that the refund prayer was final relief grantable only at trial. The entire application was dismissed with costs on 4 March 2021, delivered online under Covid-19 directives.

Key legal issues

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01

Whether the Applicant established a prima facie case with probability of success for an interlocutory injunction

Holding

No prima facie case established; preferential staff rates contractually ceased on termination of employment and the Applicant did not seek reinstatement.

Reasoning

The Staff Loan Terms and Conditions provided that preferential rates cease immediately employment terminates for whatsoever reason unless the Bank agrees otherwise in writing. The Applicant was dismissed and did not seek reinstatement or re-engagement, distinguishing the authorities she relied on. Without proof that the new rates were unlawfully imposed in breach of the agreements, no prima facie case existed, so irreparable injury and balance of convenience need not be considered.

p. 4
02

Whether the Court can rewrite loan terms to preserve staff rates post-employment

Holding

No; the court enforces and gives effect to the parties' agreement and has no jurisdiction to rewrite contracts.

Reasoning

The loan terms expressly permitted preferential rates only while the borrower remained in the Bank's employment. Relying on Damondar Jihabhai, the Court held its function is to enforce contractual intention. It is for the Court to determine whether the employment relationship lawfully ended, but having found termination and the contractual variation clauses, it could not alter the agreed terms by way of interlocutory relief.

p. 4
03

Whether the refund of allegedly overcharged interest could be ordered at the interlocutory stage

Holding

No; it is final relief grantable only on merits upon trial.

Reasoning

The prayer sought computation and refund of interest charged above the preferential staff rates. The Court held such an order is in the nature of final relief requiring full ventilation of the claim at trial, and could not be granted on the interlocutory application.

p. 4

Legal principles established

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  • Preferential staff interest rates are a fringe benefit tied to the employment relationship and survive termination only upon reinstatement or other lawful justification.
  • Where no prima facie case is established, the court need not consider irreparable injury or balance of convenience.
  • The court's function is to enforce and give effect to the parties' agreement, not to rewrite contracts.

Court orders

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  1. 1.Prayer for interlocutory injunction declined for lack of merit
  2. 2.Prayer for computation and refund of interest charged above the preferential staff rate declined as final relief grantable only upon trial
  3. 3.Entire application dismissed with costs to the Respondent

Authorities

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Legislation

  • Employment and Labour Relations Court Actsection 12, section 12(2)
  • ELRC (Procedure) RulesRule 28(3)

Cases cited (15)

  • Boniface Lum Amunga Biko v National Bank of Kenya Limited
    [2017] eKLR
  • Owners of the Motor Vessel "Lillian S" v Caltex Oil (Kenya) Ltd
    (1989) KLR 1
  • Banking Insurance & Finance Union (Kenya) v National Bank of Kenya
    [2016] eKLR
  • Abraham Asiago v Barclays Bank of Kenya Limited
    [2013] eKLR
  • Timothy John Sati v Barclays Bank Kenya Limited
    ELRC Cause No. 34 of 2017
  • Giella v Cassman Brown & Co. Ltd
    [1973] EA 358 / [1973] E.A. 360
  • Waithaka v Industrial and Commercial Development Corporation
    (2001) KLR
  • Suleiman v Amboseli Resort Ltd
    (2004) 2 KLR 589
  • Oindi Zaipppeline & 39 Others v Karatina University & another
    (2014) eKLR
  • Mrao v First American Bank (Mrao Limited v First American Bank of Kenya Limited & 2 others)
    [2003] eKLR
  • National Bank of Kenya Limited v Hamida Bana & 103 Others
    [2017] eKLR
  • Damondar Jihabhai & Co Ltd & ano v Eustace Sisal Estates Ltd
    (1967) EA 153
  • Kenya Airways Limited v Aviation & Allied Workers Union Kenya & 3 Others
    [2014] eKLR
  • Evans Oliver Olwali v Standard Chartered Bank Limited
    [2018] eKLR
  • Nguruman Limited v Jan Bonde Nielsen & 2 others
    [2014] eKLR
Jurisdiction invoked
Section 12 of the Employment and Labour Relations Court Act (invoked by the Applicant; jurisdiction not disturbed by the Court)

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, "Lilian Rhoda Adhiambo v Barclays Bank of Kenya [2021] KEELRC 2031 (KLR)", Case Analysis (2021). Notice of Motion dated 20.12.2019 (ELRC, Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/2031/eng@2021-03-04

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