Njuguna v Co-operative Bank of Kenya Limited (Cause 229 of 2019) [2023] KEELRC 87 (KLR)
The bottom line
#Kenya's Employment Court upheld KCB's dismissal of an employee over inflated land-sale transactions, ruling the bank followed fair procedure and acted on honest, reasonable grounds.
What this practically means
#Executive summary
#Key legal issues
#Whether there was valid and fair reason for termination
Yes - the claimant's conduct in the inflated land-sale transactions justified the respondent's loss of confidence and constituted gross misconduct.
Section 43(1) and 45(2)(a) and (b) of the Employment Act required the employer to prove valid and fair reasons. The claimant's name and signature appeared as vendor on sale agreements with inflated prices, and she was a joint holder of the account receiving sale proceeds. Her allegation of forgery was unproved as she led no handwriting evidence, never reported the alleged forgery, and did not annul the agreements. The respondent therefore genuinely believed she had acted dishonestly.
Whether procedural fairness was accorded
Yes - show cause letter, response, disciplinary hearing, detailed dismissal letter and appeal satisfied section 41 and 45(2)(c).
The claimant was issued a show cause letter dated November 8, 2018 detailing the allegations, responded to it, attended a disciplinary hearing on December 3, 2018 with the right to be accompanied and to tender evidence, received a dismissal letter detailing reasons, and her appeal was considered and answered. The court found the requirements of a fair hearing under section 41 of the Employment Act were met.
Whether the burden of proof was shifted to the claimant during discipline
No - asking her to support her defence with evidence was not shifting the statutory burden.
The claimant's defence was that she was not party to the transactions; it was expected she would support that assertion with evidence. The employer's burden under sections 43 and 45 was discharged, and the request that she substantiate her denial did not amount to shifting the burden of proof.
Legal principles established
#- He who alleges fraud or forgery must plead and strictly prove it; an allegation that one's signature was forged must be proved by the person making it.
- An employer need only prove reasons it genuinely believed to exist at the time of termination; dishonesty justifying dismissal is assessed in context.
Court orders
#- 1.Dismissal of the claim in its entirety
- 2.Each party to bear its own costs
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act and Labour Institutions Act (not expressly stated in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Njuguna v Co-operative Bank of Kenya Limited (Cause 229 of 2019) [2023] KEELRC 87 (KLR)", Case Analysis (2023). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/87/eng@2023-01-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.