Wanyara v Equity Bank (Kenya) Limited (Cause E070 of 2022) [2023] KEELRC 3159 (KLR)
The bottom line
#Even if an employee commits serious misconduct, Kenyan employers must still give notice and a hearing before summary dismissal, or the dismissal is procedurally unfair.
What this practically means
#Executive summary
#Key legal issues
#Procedural fairness of summary dismissal
Termination was procedurally unfair because the claimant was not given notification and a hearing as required by Section 41(2) of the Employment Act.
The court held that Section 41(2) requires notification, a hearing and consideration of representations in the presence of a fellow employee of choice; absence of any one obviates fairness. The claimant's custody did not bar issuing a hearing notice to his last known address, as the respondent did with the dismissal notice. Failure to do so rendered the dismissal procedurally unfair despite substantive grounds.
Compensation and notice pay
Three months' salary as compensation and one month's notice pay were awarded notwithstanding the procedural unfairness finding.
Taking into account the substantive grounds — the claimant's involvement in alleged conspiracy and stealing by servant — the court found three months' salary sufficient compensation, plus notice pay, since notice is also due where summary dismissal is found procedurally unfair.
Deductions for losses caused by the employee
The respondent was entitled to deduct the surcharge of Kshs. 529,111 for losses caused by the claimant under Section 19 of the Act.
The court found the employer justified in deducting liabilities and losses caused by the claimant under Section 19 of the Employment Act. The respondent had informed the claimant of a liability of Kshs. 529,111 which he had not cleared, so this was set off against the awards.
Legal principles established
#- Even where an employer has grounds for summary dismissal under Section 44, the due process requirements of Section 41(2) of the Employment Act must be adhered to and are mandatory.
- An employee's detention in police custody does not excuse the employer from issuing notice of a disciplinary hearing.
Court orders
#- 1.Compensation of Kshs. 258,000
- 2.Notice pay of Kshs. 86,000
- 3.Recognition of terminal dues paid at Kshs. 137,205.71 less Kshs. 529,111 due from the claimant
- 4.Each party to bear own costs
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment disputes under the Employment Act, 2007
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Wanyara v Equity Bank (Kenya) Limited (Cause E070 of 2022) [2023] KEELRC 3159 (KLR)", Case Analysis (2023). Cause No E070 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/3159/eng@2023-11-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.