Njuki v Cooperative Bank of Kenya Limited (Cause 5 of 2020) [2023] KEELRC 2865 (KLR)
The bottom line
#A Kenyan court upheld a bank employee's dismissal for an unexplained cash shortage because the employer proved both a valid reason and a fair disciplinary process.
What this practically means
#Executive summary
#Key legal issues
#Whether the dismissal was grounded on a valid and fair reason
Yes - the claimant admitted incurring an unexplained cash shortage of Kshs. 360,000 and breaching cash handling procedures; the employer discharged its burden under section 43
The claimant admitted receiving cash from a customer and her proxy, keeping money in a dustbin and in the counting room, depositing into the customer's account in her absence, and failing to account for a shortage of Kshs. 360,000. These contravened the contract, the Staff Manual and the Operating Manual, constituting gross misconduct under section 44 and loss of trust, a recognised valid ground for termination.
Whether a fair procedure was followed
Yes - show cause letter, response, disciplinary hearing with right to accompaniment, and consideration of representations satisfied section 41
The claimant was served with a show cause letter, responded in writing, was invited to a disciplinary hearing, was informed of his right to be accompanied by a fellow employee or union official (he attended alone), and made representations which were considered before dismissal, in compliance with section 41 of the Employment Act.
Admissibility of electronic evidence and banker's books
The banker's records were admissible as the requirements of sections 176 and 177 of the Evidence Act were met
The banker's record was produced by an agent of the respondent in open court, was in the bank's custody and control, was one of the ordinary books of the bank, was made in the ordinary course of banking business, and was examined with the original entry by the producing officer, satisfying section 177.
Whether the claimant was entitled to overtime pay
No - the claim was not proved and did not comply with the overtime policy requiring claims within two months
The claimant gave no particulars of overtime and produced no documentary proof. Under the respondent's overtime policy, claims had to be supervised, pre-approved and presented within two months. Relying on sections 107 to 109 of the Evidence Act, the burden of proof was not discharged.
Legal principles established
#- The employer must prove the reasons for termination, and the reasons are those the employer genuinely believed to exist at the time of termination
- Copies of entries in bankers' books are admissible as prima facie evidence where the requirements of sections 176 and 177 of the Evidence Act are met
Court orders
#- 1.Suit dismissed with costs to the Respondent
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Njuki v Cooperative Bank of Kenya Limited (Cause 5 of 2020) [2023] KEELRC 2865 (KLR)", Case Analysis (2023). Cause No 5 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2865/eng@2023-11-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.