Kiilu v Standard Chartered Bank Kenya Ltd (Cause 1213 of 2017) [2023] KEELRC 2698 (KLR)
The bottom line
#A Kenyan court ruled a bank unfairly fired a teller because its audit report evidence was unreliable, awarding him five months' salary plus costs.
What this practically means
#Executive summary
#Key legal issues
#Substantive justification for termination
The Respondent failed to prove that the Claimant had unauthorized access to a customer's account; the Memento report, the sole basis of the allegation, lacked credibility due to impossible double log-ins at identical times.
The Respondent relied wholly on the Memento extract showing the Claimant's PWID viewed a customer's account 32 times. However, the extract showed double viewings at the same hour, minute and second on several dates, which the Respondent's own system (per RW2) could not allow, and the Respondent offered no explanation. The court doubted the system's accuracy and found the report insufficient to hold the Claimant culpable, so the requirements of Sections 43(1) and 45(2)(a)(b) of the Employment Act were not met.
Procedural fairness
The Respondent accorded the Claimant procedural fairness under Sections 41(1) and 45(2)(c) of the Employment Act.
The Claimant was notified of the allegations at suspension, interviewed by investigators, invited to a disciplinary hearing with particulars of the allegations, the panelists, and his right to be accompanied by a colleague and call witnesses. He presented his defence and later appealed to a differently constituted panel which considered his appeal. The court found the procedural strictures of the Act were complied with.
Reliefs
Compensatory damages of five months' gross salary (Kshs 300,000) awarded under Section 49(4); reinstatement and exemplary damages declined.
Having found the termination substantively unfair and wrongful, the Court applied Section 49(4) principles, considering the short length of employment and circumstances of termination, awarding five months' gross salary. Reinstatement was time-barred under Section 12(3)(vii) of the ELRC Act, and exemplary damages were refused because compensation already makes good the employee's loss, following the South African decision in Le Monde Luggage.
Legal principles established
#- An employer bears the burden of proving the reasons for termination, failing which the termination is unfair
- Evidence whose credibility is doubtful cannot sustain a termination on a balance of probability
Court orders
#- 1.A declaration that the Claimant's termination was substantively unfair and wrongful
- 2.Compensatory damages of Kshs 300,000.00 being equivalent to five months of the Claimant's gross salary
- 3.Interest on the award at court rates from the date of Judgment until payment in full
- 4.Costs of the suit to the Claimant
- Jurisdiction invoked
- Employment and Labour Relations Court Act, Section 12 (referenced regarding reinstatement powers)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Komu v Standard Chartered Bank Kenya Limited (Cause E192 of 2021) [2024] KEELRC 1839 (KLR)[2024] KEELRC 1839 (KLR)12 Jul 2024
Cite this brief
#Cite this brief
Caselaw, "Kiilu v Standard Chartered Bank Kenya Ltd (Cause 1213 of 2017) [2023] KEELRC 2698 (KLR)", Case Analysis (2023). Cause No 1213 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2698/eng@2023-10-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.