Kennedy Ondimu Gikenyi v Family Bank Limited [2022] KEELRC 928 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Substantive justification for termination
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
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.
Procedural fairness under sections 41 and 45(2)(c)
The claimant was accorded procedural fairness; the invitation letter served as both notification and invitation, and he was heard and had an appeal
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.
Entitlement to reliefs
Claimant entitled to nothing; claim dismissed in its entirety with no orders as to costs
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.
Legal principles established
#- 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
#- 1.Dismissal of the claim in its entirety
- 2.No orders as to costs
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.