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ELRCPartially AllowedELRC Cause (Nakuru), Statement of Claim dated 22nd October 2018, filed 24th October 2018· [2023] KEELRC 18 (KLR)

Chemwok v Kenya Commercial Bank Ltd (KCB) (Cause 262 of 2018) [2023] KEELRC 18 (KLR)

Employment and Labour Relations Court
19 January 2023
5,863 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~23 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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In an employment cause filed on 24th October 2018 at the ELRC Nakuru, the Claimant, an assistant business manager at the Respondent bank's Eldoret West Branch earning Kshs.190,703 per month, challenged his termination on 9th May 2018 after 22 years of service. He sought declarations that the termination was unfair, unlawful and discriminatory, terminal dues including three months' pay in lieu of notice, maximum compensation under Section 49(1)(c) of the Employment Act, severance pay, damages for discrimination, and a certificate of service. The Respondent maintained the termination was substantively and procedurally fair, citing misconduct and conflict of interest. The court framed three issues: fairness of the termination, entitlement to reliefs, and costs. It held that although the Claimant lacked final approval authority, his failure 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 his initial denial that Michael Chemwok was his brother, amounted to serious misconduct in a fiduciary, trust-based banking industry. Procedurally, the show cause letter, disciplinary hearing with representation, and internal appeal satisfied Article 47 and the Fair Administrative Action Act. The discrimination claim failed for want of evidence. The court declared the termination fair and lawful but awarded Kshs.328,432.66 for days worked, prorated leave, and one month's pay in lieu of notice, ordered issuance of a certificate of service within 30 days, denied all other claims, and ordered each party to bear own costs.

Key legal issues

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01

Whether the termination was substantively fair and lawful

Holding

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

Reasoning

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.

p. 9
02

Whether the termination was procedurally fair

Holding

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

Reasoning

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.

p. 9
03

Whether the Claimant was discriminated against

Holding

No - no evidence established discrimination on any prohibited ground

Reasoning

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.

p. 10
04

Entitlement to terminal dues

Holding

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

Reasoning

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.

p. 11

Legal principles established

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  • 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

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  1. 1.A declaration that the termination of the Claimant by the Respondent was fair and lawful
  2. 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. 3.The Respondent to issue and deliver a certificate of service to the Claimant within 30 days of the judgment
  4. 4.All other claims denied
  5. 5.Each party to bear own costs

Authorities

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Legislation

  • Employment Act, 2007Section 36
  • Employment Act, 2007Section 49(1)(c)
  • Employment Act, 2007Section 51
  • Employment Act, 2007Section 43
  • Employment Act, 2007Sections 35, 40, 41, 43, 44, 45, 46, 47 and 48
  • Employment Act, 2007Sections 43 and 45
  • Constitution of Kenya, 2010Article 27
  • Constitution of Kenya, 2010Article 47
  • Fair Administrative Action Act

Cases cited (5)

  • Mary Chemweno v Kenya Pipeline Company Limited
    (2014) eKLR
  • Walter Ogal Anaro v Teachers Service Commission
    (2013) eKLR
  • Janet Nyandiko v Kenya Commercial Bank Limited
    (2017) eKLR
  • Kenfreight (EA) Limited v Benson Nguti
    (2016) eKLR
  • Omondi Justus Rang'ang'a & 28 Others v KCB Ltd
    Nairobi ELRC No. E618 of 2021
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment and labour relations claims (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, "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.