Cheruiyot v KCB Bank Kenya Limited (Cause 1149 of 2018) [2023] KEELRC 238 (KLR)
The bottom line
#A Kenyan court dismissed a bank teller's unfair termination claim, ruling her dismissal was fair because she ignored fraud red flags and skipped her own disciplinary hearing.
What this practically means
#Executive summary
#Key legal issues
#Validity and fairness of the reason for termination
The Respondent proved on a balance of probabilities a valid and fair reason - loss of honesty, integrity and confidence - arising from the Claimant's negligence and complicity in facilitating fraudulent withdrawals
The Claimant admitted paying out Kshs.1,297,000 on 22nd December 2016, filled a CTV for a customer with a different signature, paid a man from Ann Njeri's account, and ignored red flags such as restrictions, mismatched signatures and unclear details. Her own handwritten statement showed she took instructions from her village mate Gideon without alerting supervisors. The court held the bank justifiably lost confidence in her.
Procedural fairness of the termination
The procedure was fair; the Claimant was invited to the disciplinary hearing, attended with a representative and union, but voluntarily declined to participate citing a pending criminal case
Section 41 requires explanation, hearing and consideration of representations. The Claimant was invited, attended with a representative, and the union was represented. Her insistence that the hearing await the criminal case had no legal basis since the two processes are parallel. She squandered her opportunity to be heard, so the employer could not be faulted.
Counter-claim for Kshs.1,297,000
The counter-claim was dismissed for lack of proof of actual loss and of insurer repudiation
The Respondent's witness gave no evidence of how the claimed amount became a loss reflected in the bank's books. Banks typically insure such losses, and unlike Liech v Sameer, no evidence showed the insurer declined to pay. The counter-claim was therefore unproven.
Claim for underpayment
Disallowed; the CBA relied on post-dated the contract period and no evidence showed union membership or comparators' pay
The underpayment claim covered 2013/2014 but was premised on a CBA dated 16th August 2017, which contained no salary provisions for that period. Under her initial one-year contract the Claimant was not unionisable and led no evidence of union membership or of colleagues' earnings, so no discrimination was established.
Legal principles established
#- A termination must be both substantively justified and procedurally fair, with the employer bearing the burden of justifying grounds and the employee proving unfairness
- A pending criminal case does not bar or stay an employer's internal disciplinary process; the two are parallel processes
- An employee who voluntarily opts out of a disciplinary hearing cannot later allege procedural unfairness
- An employer cannot recover employee-caused losses from the employee without proving the loss and that the insurer declined to indemnify it
Court orders
#- 1.The Claim is dismissed
- 2.The Counter-Claim is dismissed
- 3.Parties to bear own costs
- Jurisdiction invoked
- Employment and Labour Relations Court Act, Section 12(3)(vii); Employment Act, 2007
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Cheruiyot v KCB Bank Kenya Limited (Cause 1149 of 2018) [2023] KEELRC 238 (KLR)", Case Analysis (2023). Cause No 1149 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/238/eng@2023-02-01
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.