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ELRCDismissedCause No 1487 of 2018· [2023] KEELRC 491 (KLR)

Wambua v Stanbic Bank Kenya Limited (Cause 1487 of 2018) [2023] KEELRC 491 (KLR)

Employment and Labour Relations Court
28 February 2023
AMAnna N. Mwaure
4,065 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 KCB Bank's dismissal of a personal assistant who delayed a visa application, confirming employers win when they prove both valid reasons and fair procedure.

What this practically means

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Executive summary

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The claimant, formerly Personal Assistant to the Respondent bank's regional CEO earning Ksh 251,250 monthly, sued for unlawful and unfair termination following her dismissal on April 20, 2018. She attributed the failed visa application for her boss's December 2017 Christmas trip to the CEO's late provision of documents and alleged the disciplinary process was a smokescreen for a unilateral decision by the CEO, additionally alleging racial discrimination and denial of a fair hearing. She sought a declaration of unfair termination, reinstatement, salary arrears, damages and costs. The respondent maintained the dismissal was for gross misconduct - wilful neglect of a duty within her job description - effected with valid reason and fair procedure under the Employment Act 2007 and its Human Capital Policy. The court framed two issues: whether the respondent had valid reasons to terminate, and remedies. Applying sections 43, 45 and 41 of the Employment Act and the range of reasonable responses test drawn from Leyland v Swift and Kenya Revenue Authority v Waithaka, the court found the claimant's unexplained delay between receiving instructions on November 10, 2017 and lodging the visa application on December 11, 2017 constituted negligence causing the CEO financial loss, and that the respondent complied with procedure - notice to show cause, a properly minuted hearing, and appeal opportunity. The claim was dismissed with each party bearing its own costs.

Key legal issues

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01

Whether the respondent had a valid reason to terminate the claimant

Holding

Yes - the claimant wilfully neglected a duty she was bound to perform by failing to ensure timely visa application, causing the CEO financial loss and inconvenience

Reasoning

The claimant's job description included organising travel and visa processing for the CEO. Instructions were given on November 10, 2017 but the visa application was only made on December 11, 2017, and there was no evidence explaining the delay. The claimant could not show she requested the CEO's documents and was blamed for the delay. Under section 43 of the Employment Act the respondent genuinely believed the neglect occurred, proved on a balance of probability.

p. 7
02

Whether the respondent followed fair procedure under section 41 of the Employment Act

Holding

Yes - notice to show cause, response, and disciplinary hearing with opportunity to bring a colleague were all afforded

Reasoning

The claimant was issued a notice to show cause on December 28, 2017, responded on January 12, 2018, was invited to a disciplinary hearing held on April 6, 2018 with the chance to call a colleague as witness (she declined), and minutes accurately captured proceedings. She was dismissed on April 20, 2018 and given an opportunity to appeal, satisfying section 41.

p. 7
03

Entitlement to remedies

Holding

None - the claim fails on both substance and procedure, so it is dismissed

Reasoning

Having found valid reason and fair procedure, the court concluded the claimant failed to prove unfair and unlawful termination. Reinstatement, salary arrears and damages were therefore unavailable; costs were also denied to the claimant with each party bearing its own costs.

p. 7

Legal principles established

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  • A termination is substantively justified if the employer genuinely believed the reasons for termination existed at the time of termination
  • Unfair termination requires the employer to prove a valid reason, a fair reason related to conduct, capacity or operational requirements, and fair procedure
  • Court will not substitute its view for the employer's; it applies the range of reasonable responses test

Court orders

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  1. 1.The claimant's claim of unlawful and unfair termination is dismissed
  2. 2.Each party to bear their own costs of the suit

Authorities

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Legislation

  • Employment Act 2007section 43
  • Employment Act 2007section 43(2)
  • Employment Act 2007section 45(1)
  • Employment Act 2007section 41(1)
  • Employment Act 2007section 42(1)
  • Constitution of Kenya 2010Article 159(2)(d)
  • Constitution of Kenya 2010Article 48
  • Civil Procedure ActSection 1B
  • Civil Procedure RulesOrder 21 Rule 1

Cases cited (6)

  • Evans Kamadi Misango versus Barclays Bank of Kenya Ltd
    2015 eKLR
  • National Bank of Kenya versus Anthony Njue John
    2019 eKLR
  • Leyland UK Ltd versus Swift
    1981 IRLR 91
  • Samuel Kalomit Murkomen versus Telkom Kenya Limited
    2017 eKLR
  • Kenya Revenue Authority v Reuwel Waithaka Gitahi & 2 others
    [2019] eKLR
  • Walter Oguro Onuro Vs Teachers Service Commission
    (2013) eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act 2007 (first-instance employment 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, "Wambua v Stanbic Bank Kenya Limited (Cause 1487 of 2018) [2023] KEELRC 491 (KLR)", Case Analysis (2023). Cause No 1487 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/491/eng@2023-02-28

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