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ELRCDismissedNot stated in the judgment (Statement of Claim dated 10th December, 2020)· [2022] KEELRC 547 (KLR)

Anthony Kiogora Mwiti v Kingdom Bank Limited [2022] KEELRC 547 (KLR)

Employment and Labour Relations Court
9 March 2022
DMD.K.NJAGI MARETE
2,586 words in judgment
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The bottom line

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Kenya's Employment Court confirmed a bank's dismissal was lawful because the employee, not just the employer, must prove unfair termination under section 47(5).

What this practically means

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Executive summary

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The claimant, formerly employed by Jamii Bora Bank Limited (the respondent) at its Nyeri Branch as a Relationship Manager and later Team Leader on a one-year renewable contract at Kshs.140,000 per month, sued by a Statement of Claim dated 10th December 2020 alleging wrongful dismissal and deliberate withholding of lawful dues. He was suspended on 17th August 2020 over suspected involvement in fraudulent activity in which the bank allegedly lost Kshs.338,140, summoned to a disciplinary committee held on 21st September 2020, and summarily dismissed by letter dated 2nd October 2020 for allegedly leaving his computer unlocked in breach of the respondent's ICT Acceptable Use Policy. He sought a declaration that the termination was unlawful and unfair, special damages of Kshs.1,680,000, reinstatement or in the alternative Kshs.52,080,000 computed as 12 months' salary for the years to retirement, certificate of service, costs and interest. The respondent denied the claim, asserting a lawful process of suspension, show cause letter, the claimant's written response, an open disciplinary meeting and termination with dues paid. The court framed three issues: lawfulness of the termination, entitlement to relief, and costs. Relying on the respondent's submissions and section 47(5) of the Employment Act, it held the claimant had failed to discharge his burden of proving unfair termination, and that the respondent had demonstrated lawful dismissal on grounds of default in duty leading to loss by fraud. The claim was dismissed in its entirety with each party bearing its own costs. Judgment was delivered at Nyeri on 9th March 2022 by D.K.Njagi Marete J.

Key legal issues

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01

Whether the summary dismissal of the claimant was wrongful, unfair and unlawful

Holding

The termination was lawful; the claimant failed to discharge the burden under section 47(5) of the Employment Act

Reasoning

The claimant alleged breach of section 41 of the Employment Act and Articles 41(1) and 47 of the Constitution, contending no evidence or complainant was presented at the disciplinary hearing. The respondent showed suspension, a show cause letter, the claimant's response, a disciplinary meeting and termination. Applying Bamburi Cement and the shared-burden principle, the court found the respondent demonstrated reasonable grounds for dismissal based on default in the claimant's duties leading to loss by fraud.

p. 4
02

Whether the claimant is entitled to the relief sought

Holding

The claimant is not entitled to any relief, having failed to establish unlawful termination

Reasoning

All heads of relief - declaration, special damages, reinstatement or 12-months-salary-per-remaining-years computation, certificate of service and interest - were premised on a finding of unfair termination. That finding having failed, the ancillary reliefs collapse with it.

p. 5
03

Who bears the costs of the claim

Holding

Each party to bear its own costs

Reasoning

Although the claim was dismissed, the court did not award costs to the successful respondent; it instead ordered each party to bear its own costs.

p. 5

Legal principles established

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  • The burden of proving unfair termination or wrongful dismissal rests on the employee, while the burden of justifying the grounds for termination rests on the employer (Section 47(5), Employment Act, 2007).
  • An employer must justify dismissal on reasonable and sufficient grounds, applying the range of reasonable responses test.

Court orders

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  1. 1.The claim is dismissed
  2. 2.Each party to bear its own costs of the claim

Authorities

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Legislation

  • Employment Act, 2007Section 41
  • Employment Act, 2007Section 42(1)
  • Employment Act, 2007Section 43
  • Employment Act, 2007Section 44(3) and (4)
  • Employment Act, 2007Section 47(5)
  • Constitution of Kenya, 2010Article 41(1)
  • Constitution of Kenya, 2010Article 47

Cases cited (3)

  • Bamburi Cement Limited vs. William Kilonzi
    (2016) eKLR
  • Judicial Service Commission vs. Gladys Boss Shollei
    Civil Appeal No.50 of 2014
  • Mc Kinley vs. B.C.Tel.
    (2001) 2 S.C.R. 161
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (Articles 41(1) and 47 of the Constitution invoked by the Claimant)

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, "Anthony Kiogora Mwiti v Kingdom Bank Limited [2022] KEELRC 547 (KLR)", Case Analysis (2022). Not stated in the judgment (Statement of Claim dated 10th December, 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/547/eng@2022-03-09

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