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ELRCDismissedCause No 1136 of 2017· [2022] KEELRC 928 (KLR)

Kennedy Ondimu Gikenyi v Family Bank Limited [2022] KEELRC 928 (KLR)

Employment and Labour Relations Court of Kenya
28 January 2022
3,763 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The claimant, formerly Branch Operations Manager of the respondent bank at Molo, sued for compensatory damages of Kshs 2,541,000, costs and interest, alleging wrongful and unfair termination in November 2014 following the loss of Kshs 222,122 from the bank vault on 23rd September 2014. The respondent asserted the claimant, a vault custodian and supervisor, failed to follow cash-handling procedures, delayed reporting the loss, and was accorded a fair disciplinary hearing. Each party called one witness. The court framed three issues: substantive justification, procedural fairness and entitlement to reliefs. On substance, the court applied sections 43(1) and 45(2) of the Employment Act and found the claimant negligent: he failed to confirm vault cash when transferring keys, delayed reporting the deficit for about four days contrary to policy, initially misreported the shortfall as Kshs 200,000, and admitted procedural lapses. Applying the Court of Appeal's reasoning in Violet Kadala Shitsukane and Judicial Service Commission v Gladys Boss Shollei, the court held a reasonable employer would have terminated the claimant. On procedure, the court held that the invitation letter to the disciplinary hearing satisfied section 41 as it served as both notification and invitation, the claimant was heard and had an appeal. The claim was dismissed in its entirety with no orders as to costs, dated, signed and delivered at Nairobi on 28th January 2022 by Stella Rutto, Judge.

Key legal issues

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01

Substantive justification for termination

Holding

The respondent proved valid and fair reasons - the claimant's negligence as head custodian and supervisor led to an unexplained loss of Kshs 222,122, which he failed to report promptly and initially misreported

Reasoning

The claimant admitted not confirming vault cash when handing over or taking back the keys, delayed reporting the shortfall by four days against policy, misreported the deficit amount, and admitted procedural lapses in handling the vault and register. Applying sections 43(1) and 45(2)(a) and (b), and adopting the Court of Appeal's standard in Shitsukane and the reasonableness test in JSC v Shollei, the court held a reasonable employer would have terminated the claimant, and that the respondent genuinely believed the reasons for termination.

p. 4
02

Procedural fairness under sections 41 and 45(2)(c)

Holding

The claimant was accorded procedural fairness; the invitation letter served as both notification and invitation, and he was heard and had an appeal

Reasoning

The letter dated 21 October 2014 invited the claimant to a disciplinary hearing regarding the loss, advised him he could bring a fellow employee, and he attended and made representations. He did not complain about the conduct of the proceedings at trial or in his humanitarian appeal. The court held the spirit of section 41 was fulfilled since the statute prescribes no format for notification.

p. 5
03

Entitlement to reliefs

Holding

Claimant entitled to nothing; claim dismissed in its entirety with no orders as to costs

Reasoning

Having found both substantive justification and procedural fairness, the court concluded the claimant failed to establish unfair termination and therefore was not entitled to the compensatory damages of Kshs 2,541,000, costs or interest sought in the memorandum of claim.

p. 5

Legal principles established

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  • An employer must prove that the reasons for termination were not only existing but also valid and fair, under sections 43(1) and 45(2) of the Employment Act
  • Section 41 of the Employment Act does not prescribe the format of notification; a dual-purpose invitation letter notifying the employee of the allegations satisfies the section
  • Banks and their staff must maintain a high degree of integrity, prudence and financial probity; staff conduct pointing to misconduct with customer funds risks termination

Court orders

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  1. 1.Dismissal of the claim in its entirety
  2. 2.No orders as to costs

Authorities

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Legislation

  • Employment Actsection 43(1)
  • Employment Actsection 43(2)
  • Employment Actsection 45(2)(a) and (b)
  • Employment Actsection 45(2)(c)
  • Employment Actsection 41
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48

Cases cited (6)

  • Benson Nguti vs Kenfright (Ea) Limited
    Cause No. 146 of 2013
  • Eliud Nyaenga Gwaro vs Kenya Revenue Authority
    [2021] eKLR
  • Alice Nyanduko Omwancha vs Kenya Industrial Estates Limited
    [2019] eKLR
  • Daniel Otieno Mbola vs Robinson Investments Limited
    [2014] eKLR
  • Violet Kadala Shitsukane vs Kenya Post Savings Bank
    Nairobi Civil Appeal No. 295 of 2016
  • Judicial Service Commission vs Gladys Boss Shollei & another
    [2014] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act; judgment delivered per Article 159(2)(d) and Article 48 of the Constitution (COVID-19 directions)

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, "Kennedy Ondimu Gikenyi v Family Bank Limited [2022] KEELRC 928 (KLR)", Case Analysis (2022). Cause No 1136 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/928/eng@2022-01-28

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