Nguru v Cooperative Bank of Kenya Limited (Cause E044 of 2022) [2023] KEELRC 1724 (KLR)
The bottom line
#Kenya's Employment Court refused to pause a banker's unfair termination case, ruling that a bank cannot gather new evidence after firing him to justify the dismissal.
What this practically means
#Executive summary
#Key legal issues
#Test for stay of proceedings
Stay of proceedings is a grave judicial action granted only in exceptional, most deserving cases; the test is high and stringent
The court applied the settled principle that stay of proceedings interferes with the right of a litigant to conduct litigation, impinging on access to justice, right to be heard without delay and fair trial. The discretion is exercisable on the facts of each case, weighing the need for expeditious disposal, arguability of the intended appeal, judicial time and expedition of the application.
Relevance of evidence sought on appeal to the fairness of termination
The employer cannot rely on evidence obtained after termination to justify the dismissal; grounds for termination must exist at the time of the disciplinary decision
The termination had already occurred and its lawfulness turns on the reason(s) and process at the time of the decision, as required by sections 41, 43, 45 and 47(5) of the Employment Act. Documents not part of the disciplinary record cannot be introduced later, absent a counter-claim, to cure evidential gaps; allowing it would let the employer shift its case as the matter moves along.
Legal principles established
#- Stay of proceedings should only issue in exceptional cases calling for special measures, as it impacts the right to expeditious hearing
- In employment claims, the reason(s) for termination must have existed at the time of the decision to terminate and cannot change with time; the employer bears the burden of proving both valid reason and due process
Court orders
#- 1.Application dated March 24, 2023 seeking stay of proceedings dismissed
- 2.Costs of the application to the claimant
- On appeal from
- Mombasa Court of Appeal
- Civil Appeal No. E027 of 2023
- Jurisdiction invoked
- Section 3 of the Employment and Labour Relations Court Act, 2011 (discretionary power to regulate proceedings)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nguru v Cooperative Bank of Kenya Limited (Cause E044 of 2022) [2023] KEELRC 1724 (KLR)", Case Analysis (2023). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1724/eng@2023-06-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.