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ELRCDismissedNot stated in the judgment· [2023] KEELRC 437 (KLR)

Kimaiyo v Central Bank of Kenya Ltd (Cause 22 of 2017) [2023] KEELRC 437 (KLR)

Employment and Labour Relations Court of Kenya
20 February 2023
2,531 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court upheld the Central Bank's dismissal of an employee accused of job-scam fraud, confirming employers only need prove misconduct on a balance of probability.

What this practically means

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Executive summary

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By a memorandum of claim filed on 31st March 2015, the claimant, a former security assistant at the Central Bank of Kenya employed in 2007 and earning Ksh.87,384.10 per month, sought declarations and damages totalling Kshs.5,505,193 for what he alleged was unlawful, unprocedural and unfair termination on 21st December 2012. He claimed he was not accorded a fair hearing, that his written defence was ignored, and that no investigation justified the allegations. The respondent defended the dismissal, pleading that the claimant was terminated for breach of trust, misconduct and wilful negligence after he fraudulently obtained money from two women - Dorcas Cheruto Lodis and Jocelyne Jemutai Kemboi - on the false pretext of securing them jobs with the bank. The respondent conducted investigations, obtained M-PESA transaction records through a criminal miscellaneous application in the Chief Magistrates Court at Meru, issued a show cause letter, convened a disciplinary hearing, summarily dismissed the claimant, and upheld the dismissal on appeal. At the hearing, the claimant maintained the complainants were jilted lovers, while the respondent's witness outlined the investigative and disciplinary process. Applying section 47(5) of the Employment Act, the court placed the burden of justifying the dismissal on the employer and the burden of proving unfair termination on the employee. The M-PESA records corroborated the complaints, and the claimant produced no credible evidence of having advanced the complainants money. The court held that employment cases are civil claims decided on a balance of probability, found the dismissal justified and procedurally fair, and dismissed the claim with costs on 20th February 2023.

Key legal issues

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01

Validity and justification of the grounds for summary dismissal

Holding

The respondent proved valid and justifiable grounds - the claimant obtained money from two women on the false pretext of securing them jobs with the bank

Reasoning

The court weighed the claimant's explanation (that the complainants were jilted lovers) against the respondent's evidence, including M-PESA records showing receipt of money from Lodis and a deposit approximating the sum Jocelyn had sought. The claimant produced no credible evidence that he had advanced the complainants money, and the coincidence of deposits undermined his account.

p. 6
02

Procedural fairness of the dismissal

Holding

Due process was followed: the claimant was issued a show cause letter, responded to it, attended a disciplinary hearing, and his appeal was heard and dismissed

Reasoning

The court accepted the respondent's evidence that investigations were conducted, statements recorded, the claimant answered to the allegations, appeared before the disciplinary committee which recommended dismissal, and that his appeal was heard and the dismissal upheld. The short time given to respond to the show cause letter did not render the process unfair on the facts.

p. 4
03

Standard of proof applicable in employment claims

Holding

The applicable standard is balance of probability; guilt need not be proved to the criminal standard

Reasoning

The court held that where it is reasonably demonstrated that it is more probable than not that the employee was guilty of the act or omission alleged, the employer discharges its burden under section 47(5). The fraudulent conduct need not rise to criminal-proof standard.

p. 6

Legal principles established

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  • Under section 47(5) of the Employment Act, the burden of proving unfair termination lies on the employee, while the burden of justifying the grounds for termination lies on the employer
  • Employment disputes are civil claims and the standard of proof is on a balance of probability, not the criminal standard

Court orders

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  1. 1.The claim is found without merit and is dismissed
  2. 2.The claimant to pay the costs of the claim

Authorities

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Legislation

  • Employment ActSection 47(5)
Jurisdiction invoked
Original employment and labour relations jurisdiction of the Employment and Labour Relations Court (first-instance memorandum of claim)

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, "Kimaiyo v Central Bank of Kenya Ltd (Cause 22 of 2017) [2023] KEELRC 437 (KLR)", Case Analysis (2023). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/437/eng@2023-02-20

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