Namai v National Bank of Kenya Limited (Constitutional Petition E039 of 2023) [2023] KEELRC 1497 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether a constitutional petition lies for unfair termination within a contract of service
The petition properly invoked Articles 41 and 47; the violations occurred notwithstanding the respondent's compliance with the Employment Act procedural requirements
The respondent had followed notice and hearing requirements under section 41 of the Employment Act, but the petitioner alleged that even so, his rights to fair administrative action and fair labour practices were breached. The Court found the grievances raised at the capability hearing and on appeal were well-grounded under section 46 and were disregarded, amounting to unreasonableness under Article 47 and unfair labour practices under Article 41.
Whether the termination was for a fair reason
The termination was unfair; the unsatisfactory performance scores were not attributable to the petitioner's capacity but to the respondent's defective operational requirements
Although the scores of unsatisfactory performance were not in dispute, the petitioner's unresolved valid grievances - abrupt transfers, lack of mentorship and support, Covid-19 disruption, understaffing and a branch that had not broken even for eight years - were not taken into account. In absence of rebuttal by the respondent, poor performance could not fairly be attributed to the petitioner.
Appropriate remedies for constitutional violations in employment
General damages of Kshs. 5,000,000.00 awarded guided by factors in section 49 of the Employment Act; reinstatement, aggravated damages and discrimination declaration refused
The Court considered the 27 years of clean and meritorious service, the complete disregard of the petitioner's grievances, and the respondent's action while the petitioner still owed it substantial loan amounts. Section 49 factors were used only as guidance since the award was for constitutional violation, not under the Employment Act.
Legal principles established
#- An employer who disregards an employee's valid grievances about the work environment cannot establish a fair reason for termination on grounds of unsatisfactory performance
- Where poor performance is attributable to the employer's defective operational requirements, it cannot be visited upon the employee
Court orders
#- 1.Declaration that the petitioner's fundamental rights and freedoms were violated by the respondent, in particular Articles 41 and 47
- 2.Declaration that the respondent terminated the petitioner's employment unfairly
- 3.Respondent to pay petitioner Kshs. 5,000,000.00 compensation for actual violation of constitutional rights, payable by August 1, 2023, failing interest at Court rates from the date of judgment until full payment
- 4.Respondent to pay costs of the suit
- Jurisdiction invoked
- Constitution of Kenya, 2010 Articles 41 and 47; Employment Act, 2007
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Namai v National Bank of Kenya Limited (Constitutional Petition E039 of 2023) [2023] KEELRC 1497 (KLR)", Case Analysis (2023). Constitutional Petition No E039 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1497/eng@2023-06-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.