Kimaiyo v Central Bank of Kenya Ltd (Cause 22 of 2017) [2023] KEELRC 437 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Validity and justification of the grounds for summary dismissal
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
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.
Procedural fairness of the dismissal
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
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.
Standard of proof applicable in employment claims
The applicable standard is balance of probability; guilt need not be proved to the criminal standard
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.
Legal principles established
#- 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
#- 1.The claim is found without merit and is dismissed
- 2.The claimant to pay the costs of the claim
- Jurisdiction invoked
- Original employment and labour relations jurisdiction of the Employment and Labour Relations Court (first-instance memorandum of claim)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.