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ELRCPartially AllowedCause No 1213 of 2017· [2023] KEELRC 2698 (KLR)

Kiilu v Standard Chartered Bank Kenya Ltd (Cause 1213 of 2017) [2023] KEELRC 2698 (KLR)

Employment and Labour Relations Court
27 October 2023
4,408 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~18 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The Claimant, a bank teller employed from 19th September 2013 and confirmed in February 2014, was terminated on 15th July 2015 for alleged unauthorized access to a customer's account between 2nd January and 17th February 2015, during which eight fraudulent cheques caused a loss of Kshs 7,460,000. He sought a declaration of unfair termination, twelve months' salary, reinstatement, exemplary damages of Kshs 3,000,000 and costs. The Respondent relied on a Memento system extract showing the Claimant's PWID accessed the account of Dorcas Wairimu Njoroge 32 times. The Court framed three issues: substantive justification, procedural fairness, and reliefs. On substance, the Court found the Memento extract - the Respondent's 'smoking gun' - lacked credibility because it recorded double viewings of the same account at the identical hour, minute and second on multiple dates, which the Respondent's own system (which permits only one log-in at a time) could not generate, and the Respondent offered no explanation. The Respondent thus failed to discharge its burden under Sections 43(1) and 45(2)(a)(b) of the Employment Act. Procedurally, however, the Claimant was notified of the allegations, interviewed, afforded a disciplinary hearing with the right to be accompanied and to call witnesses, and given an appeal before a differently constituted panel; procedure complied with Sections 41(1) and 45(2)(c). Judgment was entered for the Claimant: a declaration that the termination was substantively unfair and wrongful, compensatory damages of Kshs 300,000 (five months' gross salary) under Section 49(4), interest at court rates, and costs. Reinstatement was declined as time-barred under Section 12(3)(vii) of the ELRC Act, and exemplary damages were refused as compensation is meant to make good the loss, not punish the employer, following the South African decision in Le Monde Luggage.

Key legal issues

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01

Substantive justification for termination

Holding

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.

Reasoning

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.

p. 7
02

Procedural fairness

Holding

The Respondent accorded the Claimant procedural fairness under Sections 41(1) and 45(2)(c) of the Employment Act.

Reasoning

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.

p. 8
03

Reliefs

Holding

Compensatory damages of five months' gross salary (Kshs 300,000) awarded under Section 49(4); reinstatement and exemplary damages declined.

Reasoning

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.

p. 8

Legal principles established

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  • 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

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  1. 1.A declaration that the Claimant's termination was substantively unfair and wrongful
  2. 2.Compensatory damages of Kshs 300,000.00 being equivalent to five months of the Claimant's gross salary
  3. 3.Interest on the award at court rates from the date of Judgment until payment in full
  4. 4.Costs of the suit to the Claimant

Authorities

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Legislation

  • Employment ActSection 43(1)
  • Employment ActSection 45(2)(a)(b)(c)
  • Employment ActSection 41(1)
  • Employment ActSection 49(4)
  • Employment and Labour Relations Court ActSection 12(3)(vii)
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48

Cases cited (2)

  • Moses Chavangi vs Barclays Bank of Kenya Ltd
    ELRC Cause No. 694 of 2010
  • Le Monde Luggage cc t/a Pakwells Petze vs Commissioner G. Dun and others
    Appeal Case No. JA 65/205
Jurisdiction invoked
Employment and Labour Relations Court Act, Section 12 (referenced regarding reinstatement powers)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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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.