Chemwok v Kenya Commercial Bank Ltd (KCB) (Cause 262 of 2018) [2023] KEELRC 18 (KLR)
The bottom line
#Kenya's Employment Court upheld KCB's firing of a bank manager for hidden conflicts of interest, but ordered payment of his unpaid dues and a service certificate.
What this practically means
#Executive summary
#Key legal issues
#Whether the termination was substantively fair and lawful
Yes - the Respondent proved valid grounds of misconduct (non-disclosure of conflicts of interest, dishonesty, failure to note and report material facts) under Sections 43 and 45 of the Employment Act
The Claimant, though not the final approving authority, failed to disclose that the branch manager was a director of Cosy Holdings Ltd, that Roseline Mueni Kasyoki was the branch manager's wife, that the branch manager was CRB-blacklisted, and initially denied that Michael Chemwok was his brother. Banking is founded on trust and utmost good faith; these non-disclosures amounted to serious misconduct justifying termination.
Whether the termination was procedurally fair
Yes - the Claimant was given a show cause letter, disciplinary hearing with representation, an appeal, all in line with Article 47 and the Fair Administrative Action Act
The Claimant was informed of the charges, attended a disciplinary hearing with a fellow employee as representative, signed the minutes, defended himself against all charges, and his internal appeal was considered by an appeals committee with records and minutes availed to court. The court cannot fault the procedure.
Whether the Claimant was discriminated against
No - no evidence established discrimination on any prohibited ground
Discrimination connotes disadvantage based on unconstitutional or illegal considerations under Article 27. No evidence showed other employees guilty of similar misconduct received lenient sanctions; the Claimant uniquely faced five charges and was found culpable in all. The claim for damages for discrimination was denied.
Entitlement to terminal dues
Days worked in May 2018 (Kshs.63,567.66), prorated leave (Kshs.74,162) and one month's pay in lieu of notice (Kshs.190,703) awarded; three months' notice pay, compensation, discrimination damages and severance pay refused
The notice claim based on the CEO memo failed as the memo applied only to staff rationalization applicants. Days worked and leave prorate were unrebutted as the Respondent, custodian of employment records, adduced no evidence to dispute them. Terminal dues in the May 2018 payslip not proved as paid and not deductible.
Legal principles established
#- In a claim arising out of termination, the employer bears the burden of proving the reason or reasons for termination, failing which the termination is unfair under section 45 of the Employment Act
- An employer with reasonable grounds for loss of trust and confidence in an employee, in the sensitive banking industry, may lawfully terminate where the employee cannot satisfactorily defend the charges
- The court's role in unfair termination claims is to examine the procedure adopted, not to substitute its own findings for those of the employer
- A claimant alleging discrimination bears the initial burden of demonstrating disadvantage based on prohibited grounds before the burden shifts
Court orders
#- 1.A declaration that the termination of the Claimant by the Respondent was fair and lawful
- 2.The Claimant is awarded Kshs. 328,432.66 with interest from the date of judgment less statutory deductions (days worked in May 2018 of Kshs.63,567.66 and prorated leave of Kshs.74,162 plus one month's salary in lieu of notice of Kshs.190,703 less statutory deductions)
- 3.The Respondent to issue and deliver a certificate of service to the Claimant within 30 days of the judgment
- 4.All other claims denied
- 5.Each party to bear own costs
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment and labour relations claims (Employment Act, 2007)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Chemwok v Kenya Commercial Bank Ltd (KCB) (Cause 262 of 2018) [2023] KEELRC 18 (KLR)", Case Analysis (2023). ELRC Cause (Nakuru), Statement of Claim dated 22nd October 2018, filed 24th October 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/18/eng@2023-01-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.