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ELRCPartially AllowedAmended Memorandum of Claim dated October 25, 2021· [2023] KEELRC 435 (KLR)

Ndzai v Century Micro Finance Bank Ltd (Employment and Labour Relations Cause 383 of 2016) [2023] KEELRC 435 (KLR)

Employment and Labour Relations Court
16 February 2023
3,011 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ruled that even regulator-driven dismissals require a valid reason and a hearing before termination.

What this practically means

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Executive summary

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The claimant, employed by Century Microfinance Bank Limited as Business Development Manager from March 2, 2015 and later promoted to General Manager (and allegedly Acting CEO), was summarily terminated effective December 31, 2015. The respondent asserted that the termination flowed from the Central Bank of Kenya's refusal to approve the claimant's appointment following vetting, owing to a pending criminal case (in which he was later acquitted), and counterclaimed Kshs 267,011/- for unaccounted floats and outstanding loans. The claimant maintained the termination was substantively and procedurally unfair, that the Central Bank letter never recommended termination, and sought notice pay, accrued leave, December 2015 salary and acting CEO salary. The court framed three issues: whether the termination was fair and lawful, and whether the parties' respective reliefs were merited. Holding that sections 41 and 45 of the Employment Act are mandatory, the court found the respondent flouted employment laws by dismissing the claimant without a valid reason or a hearing, even if the contract were illegal. Relying on Co-operative Bank v Yator and Standard Group v Lyesby, judgment was entered for the claimant. Remedies: two months' notice pay (Kshs 500,000), accrued leave of 18 days less 5 taken, compensation of Kshs 250,000 (total Kshs 750,000 subject to clarification), costs plus interest, and a certificate of service within 14 days. The acting CEO salary claim was disallowed for want of documentation, and the counterclaim was not sustained.

Key legal issues

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01

Whether the termination was fair and lawful notwithstanding the Central Bank of Kenya's refusal to approve the claimant's appointment

Holding

The termination was unfair and unlawful; the respondent failed to give a valid reason and flouted the procedure in sections 41 and 45 of the Employment Act

Reasoning

The court held the respondent should have done due diligence and sought Central Bank clearance before hiring. The termination letter was vague, citing only 'issues raised by the Central Bank of Kenya during your vetting process'. No hearing was held and no valid reasons were communicated. Even an illegal contract did not excuse the absence of procedural fairness. The authorities relied on (Co-operative Bank v Yator; Standard Group v Lyesby) confirm the section 41 procedure is mandatory.

p. 6
02

Whether the claimant's reliefs were merited

Holding

Partially: notice pay, accrued leave, one month's compensation and costs awarded; acting CEO salary disallowed for want of evidence

Reasoning

The court awarded two months' salary in lieu of notice (Kshs 500,000), accrued leave of 18 days less 5 days taken, and compensation of Kshs 250,000 for one month, totalling Kshs 750,000 subject to clarification of December salary and leave dues. The acting CEO salary claim failed because there was no documentation establishing the position or acting allowance.

p. 6
03

Whether the respondent's counterclaim of Kshs 267,011/- was merited

Holding

The counterclaim did not succeed; judgment was entered for the claimant

Reasoning

Although the respondent alleged unaccounted-for floats, an outstanding loan to a junior employee induced for the claimant's benefit, and an outstanding loan to the claimant's sister, the claimant explained the float was for an office meeting and unreconciled because an invoice had not been received before termination, and that his sister's loan predated his employment. The court entered judgment for the claimant without upholding the counterclaim.

p. 6

Legal principles established

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  • Sections 41 and 45 of the Employment Act are mandatory; an employer must give a valid reason and an opportunity to be heard before terminating an employee, even where gross misconduct or an illegal contract is alleged.
  • Even where an employee operates under an illegal contract, procedural fairness under section 41 must still be accorded before termination.

Court orders

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  1. 1.Judgment entered in favour of the claimant on the claim of unfair termination
  2. 2.Award of two months' salary in lieu of notice - Kshs 500,000/-
  3. 3.Accrued leave for 18 days less 5 days already taken, parties to confirm amount due
  4. 4.Prayer for unpaid salary for acting as CEO disallowed
  5. 5.Compensation of Kshs 250,000/- for one month; total awarded Kshs 750,000/- subject to clarifying December 2015 salary and leave pay
  6. 6.Costs awarded to the claimant plus interest at court rates from date of judgment till full payment
  7. 7.Certificate of service to be issued within 14 days
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment claims (Employment Act; Employment and Labour Relations Court Act) - not expressly stated in the judgment

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, "Ndzai v Century Micro Finance Bank Ltd (Employment and Labour Relations Cause 383 of 2016) [2023] KEELRC 435 (KLR)", Case Analysis (2023). Amended Memorandum of Claim dated October 25, 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/435/eng@2023-02-16

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.