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ELRCPartially AllowedCause number not stated in judgment (originally filed in the High Court, 29th October 2013, transferred to ELRC)· [2023] KEELRC 454 (KLR)

Mburu v Co-operative Bank of Kenya Ltd & another (Cause 972 of 2015) [2023] KEELRC 454 (KLR)

Employment and Labour Relations Court of Kenya
23 February 2023
8,712 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~35 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled a bank teller's dismissal unfair because the bank skipped proper disciplinary procedure, awarding her compensation despite her criminal acquittal not automatically protecting her job.

What this practically means

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Executive summary

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This first-instance employment and tort claim arose from a Kshs.500,000 cash shortage discovered in the Claimant's till at the 1st Respondent bank's Kimathi Branch on 21st August 2012. After internal investigations failed to trace the money, the bank reported the loss to the police; the Claimant was arrested, charged with stealing by servant in Chief Magistrates' Criminal Case No. 1324 of 2012, suspended on 30th August 2012 and summarily dismissed on 1st October 2012. She was acquitted in June 2013 and sued for unfair termination, malicious prosecution, defamation and related reliefs. The court framed three issues: malicious prosecution and defamation, fairness of termination, and entitlement to reliefs. On malicious prosecution, applying Mbowa v East Mengo District Administration, the court found the bank was actively instrumental in the prosecution and the case ended in the Claimant's favour, but she failed to prove absence of reasonable and probable cause or malice, the bank having investigated for over six days before reporting the loss as required for insurance. The defamation claim failed for want of particulars and proof, and because the media house was not joined. Substantively, the bank had a valid reason to dismiss for breach of trust, but procedurally the dismissal was unfair: there was no proof the show cause letter was received, no invitation to a disciplinary hearing and no minutes. The court declared the summary dismissal unfair and awarded half salary for September 2012 (Kshs.46,261.50) and the equivalent of five months' gross salary (Kshs.462,615) under Section 49 of the Employment Act, with costs and interest against the 1st Respondent. Damages for malicious prosecution and defamation, special damages, salary from suspension, CRB-listing damages and leave pay were all declined. Judgment delivered virtually at Nairobi on 23rd February 2023 by Dr. Jacob Gakeri, Judge.

Key legal issues

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01

Malicious prosecution

Holding

Claim failed: only two of the four ingredients were proved

Reasoning

The 1st Respondent was actively instrumental in instigating the prosecution and the criminal case ended in acquittal, but the Claimant failed to prove absence of reasonable and probable cause and malice. The bank investigated the Kshs.500,000 shortage for over six days before reporting it to the police as required for insurance purposes, and the criminal court itself found a case to answer.

p. 14
02

Defamation

Holding

Claim failed for want of proof and particulars

Reasoning

The Claimant alleged she was displayed among accused persons on television but furnished no particulars, availed no footage or words, and did not join the alleged media house. No nexus between the alleged defamation and the Respondents was established, consistent with the Court of Appeal's holding in Paramount Bank Ltd v Naqvi Syad Camara.

p. 9
03

Substantive fairness of the dismissal

Holding

The 1st Respondent had a valid reason to terminate

Reasoning

The Claimant was accountable for cash in her till, the Kshs.500,000 shortage was never explained or recovered, the investigation ruled out misposting and system failure, and employment was premised on trust. Clause 5(c)(iii) of the CBA encompassed both internal and criminal processes, and the criminal case's pendency did not bar dismissal.

p. 15
04

Procedural fairness of the dismissal

Holding

Dismissal was procedurally unfair under Section 45 of the Employment Act

Reasoning

No evidence was adduced that the show cause letter was delivered, posted or emailed; the Claimant denied receiving it. There was no invitation to a disciplinary hearing with the right to be accompanied, and no minutes of any hearing. Without evidence of a disciplinary process compliant with Section 41, the termination was unfair for want of procedural propriety.

p. 16
05

Remedies

Holding

Declaration, half salary for September 2012 and 5 months' gross salary compensation awarded; other prayers declined

Reasoning

Applying Section 49(4) factors - about 4 years and 3 months of service, a good record with no prior misconduct, reasonable expectation of long employment, diminished employability, and no appeal against dismissal - the court found the equivalent of 5 months' gross salary fair compensation.

p. 17

Legal principles established

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  • A criminal acquittal does not bar or render wrongful an employer's disciplinary action, as criminal proceedings and internal disciplinary processes are distinct.
  • For a termination to be fair it must be both substantively justifiable and procedurally fair.
  • An employer must ensure an employee actually receives the notice to show cause; proceeding to dismissal without confirming receipt is procedurally unfair.
  • The four ingredients of malicious prosecution must all unite to create a cause of action.

Court orders

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  1. 1.Declaration that the summary dismissal of the Claimant by the Respondent was unfair.
  2. 2.Withheld half salary for September 2012, Kshs.46,261.50.
  3. 3.Equivalent of 5 months gross salary, Kshs.462,615/=.
  4. 4.Costs of this suit.
  5. 5.Interest at court rates from date of judgement till payment in full.
Jurisdiction invoked
Transferred to the Employment and Labour Relations Court where the claim ought to have been filed in the first instance (Employment and Labour Relations Court Act jurisdiction over employment disputes)

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, "Mburu v Co-operative Bank of Kenya Ltd & another (Cause 972 of 2015) [2023] KEELRC 454 (KLR)", Case Analysis (2023). Cause number not stated in judgment (originally filed in the High Court, 29th October 2013, transferred to ELRC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/454/eng@2023-02-23

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