Gordon Magak Odhiambo v Co-operative Bank of Kenya [2021] KEELRC 2274 (KLR)
The bottom line
#A Kenyan court upheld a bank employee's summary dismissal, confirming employers can discipline staff for misconduct even while a related criminal case is still pending.
What this practically means
#Executive summary
#Key legal issues
#Validity of reason and fairness of procedure for summary dismissal
The respondent had a valid reason and followed a fair procedure; the dismissal complied with sections 41, 43, 44 and 45 of the Employment Act.
The claimant withdrew Kshs.6,300,000 from a customer's account in the customer's absence, without the customer's identity card for verification, and handed the cash to the Acting Branch Manager contrary to bank operating procedures. He had no tangible defence, had a prior warning for negligence, and was versed with cash encashment procedures after over five years of service. He was issued a show-cause letter, responded, and attended a disciplinary hearing accompanied by a union official.
Whether dismissal should await the outcome of a related criminal case
No; an employer may discipline an employee while a related criminal trial is pending.
The claimant argued the dismissal was premature as the criminal case (SRM CR. Case No. 227 of 2015) was still pending. The court held it is trite law that the employer need not await the criminal outcome, and the respondent's Staff Manual (Clause 28.12) permitted disciplining an employee for misconduct while the matter was pending in court.
Entitlement to the reliefs sought by the claimant
The claimant proved no duress or undue influence and was not entitled to any relief.
Having found valid reason and fair procedure, the court held the claimant failed to prove duress or undue influence by his supervisor, and the suit was dismissed with costs.
The respondent's Counter-Claim
Struck out; the ELRC was not the appropriate forum for the commercial counter-claim.
The court found insufficient material to adjudicate the counter-claim: no evidence of the credit, loan and mortgage contracts, the state of repayments, or the securities provided. Despite earlier finding (para 43) that the claimant was liable, the court struck out the counter-claim as not appropriate for this forum.
Legal principles established
#- An employer need not await the conclusion of a related criminal trial before disciplining an employee.
- A summary dismissal is fair where the employer has a valid reason and accords the employee a fair hearing, including participation in the disciplinary process.
Court orders
#- 1.Dismissal of the claimant's suit for lack of merit
- 2.Striking out of the respondent's Counter-Claim
- 3.Costs of the suit awarded to the respondent
- Jurisdiction invoked
- Article 41(1) of the Constitution and the Employment Act, 2007 (first-instance ELRC employment claim)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Gordon Magak Odhiambo v Co-operative Bank of Kenya [2021] KEELRC 2274 (KLR)", Case Analysis (2021). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/2274/eng@2021-01-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.