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ELRCPartially AllowedNot stated in the judgment (ELRC cause; reference to accounts 001IJMD191150002 and 001IJMD191150001)· [2022] KEELRC 576 (KLR)

Mark Theophil Odero Adoyo v DIB Bank Kenya Limited [2022] KEELRC 576 (KLR)

Employment and Labour Relations Court
10 March 2022
2,231 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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A Kenyan court stopped a bank from raising a fired employee's staff loan rates to commercial levels until his unfair termination case is decided.

What this practically means

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Executive summary

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The Claimant, a former employee of the Respondent Bank engaged in 2017 as Head of E-Channels, moved by Notice of Motion dated 27th January 2022 seeking interlocutory injunctions restraining the Bank from varying the interest rates on two staff loan facilities (Kshs. 4,000,000 and 2,100,000, secured by his matrimonial home and ancestral land) from staff to commercial rates, and from harassing or victimising him, pending determination of his suit. He alleged unlawful, retaliatory termination without a hearing and wrongful withholding of terminal dues and a Certificate of Service contrary to Section 51 of the Employment Act and Article 41(1) of the Constitution. The Respondent, through its Legal Manager Farida Ghazi, opposed the application as belated and an afterthought, contending the Facility Letters entitled it to revert to commercial rates three months after exit and that the loan agreement was distinct from the employment contract. Linnet Ndolo J applied the Giella v Cassman Brown tests. Relying on BIFU v Consolidated Bank and Abraham Nyambane Atsiago v Barclays Bank, the court held that preferential staff rates created an indefeasible nexus between the loans and the employment relationship, and that an employer's right to vary rates depends on the termination being lawful. The Claimant's complaints over the termination and withheld dues constituted a prima facie case; loss of the secured home and ancestral land would be irreparable; and the balance of convenience favoured a diligent borrower. The court granted the injunction against rate variation pending the main claim, with costs in the cause. Orders were delivered virtually at Nairobi on 10th March 2022.

Key legal issues

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01

Whether the loan dispute is separable from the employment relationship

Holding

The preferential rates created an indefeasible nexus with employment, so the dispute falls within employment and labour relations

Reasoning

Although the loans were granted under stand-alone agreements, the interest advantage flowed from the employment. The court adopted Rika J in BIFU v Consolidated Bank and its own decision in Atsiago v Barclays Bank, holding that the employment relationship generates rights and obligations beyond the express contract, all falling under employment and labour relations.

p. 3
02

Whether the Claimant established a prima facie case

Holding

Yes - the issues of alleged unlawful termination and withheld terminal dues met the Mrao definition

Reasoning

The Claimant complained he was not heard before termination and that terminal dues were withheld. The court could not understand why the Respondent had not applied the terminal dues to offset the loan balance, which its own deponent said was permissible, strengthening the inference of wrongdoing requiring an explanation.

p. 3
03

Irreparable injury and balance of convenience

Holding

Both limbs favoured the Claimant: risk of losing irreplaceable secured property, and a diligent borrower ought to be supported

Reasoning

Commercial rates levied while terminal dues were withheld exposed the Claimant to default and loss of his matrimonial home and ancestral land, which are irreplaceable; statutory damages under the Employment Act would not adequately compensate. The Claimant had diligently repaid despite loss of income, so the balance of convenience favoured him.

p. 3

Legal principles established

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  • Preferential staff interest rates create a nexus between the employment relationship and the loan agreement, bringing disputes over such loans within employment and labour relations jurisdiction
  • An employer's right to vary preferential interest rates after termination is pegged on the termination being lawful; where the legality of termination is in question, that right is stayed pending determination

Court orders

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  1. 1.An order of injunction restraining the Respondent, its agents and/or servants or any person acting on its behalf from varying, adjusting or increasing the interest rate on the facilities granted to the Claimant during his employment from staff rate to commercial rates in Accounts No. 001IJMD191150002 and 001IJMD191150001, pending hearing and determination of the main claim
  2. 2.Costs of the application to be in the cause
Jurisdiction invoked
Employment and labour relations jurisdiction over disputes arising from the employment relationship, including staff loan facilities (Employment and Labour Relations Court Act; Employment Act, 2007)

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, "Mark Theophil Odero Adoyo v DIB Bank Kenya Limited [2022] KEELRC 576 (KLR)", Case Analysis (2022). Not stated in the judgment (ELRC cause; reference to accounts 001IJMD191150002 and 001IJMD191150001). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/576/eng@2022-03-10

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