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ELRCPartially AllowedNot stated in the judgment text provided· [2023] KEELRC 3180 (KLR)

Nderitu v Chase Bank (K) Limited (In Receivership) & 2 others (Cause 365 of 2017) [2023] KEELRC 3180 (KLR)

Employment and Labour Relations Court
4 December 2023
4,714 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~19 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled a bank unfairly dismissed its teller because it could not prove the fraud allegations or show a fair disciplinary hearing took place.

What this practically means

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Executive summary

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The Claimant, employed by the 1st Respondent bank as a teller from 1st September 2012, was suspended on 9th December 2013 over alleged fraudulent transactions and summarily dismissed on 16th April 2014. Criminal charges arising from the same allegations were withdrawn under Section 87(a) of the Criminal Procedure Code. He claimed unfair and unlawful termination seeking reinstatement, notice pay, compensation, gratuity, exemplary damages and a certificate of service. The respondent, by then in receivership and liquidation, contended the suit was incompetent against an insolvent employer under Sections 66-69 of the Employment Act and that the dismissal was procedurally and substantively fair. The court held the suit was competent because the claimant's dues had not crystallised at filing. On fairness, the respondent produced no notice to show cause, no investigation report and no disciplinary hearing minutes; the liquidator witness could not confirm the hearing. The court found the employer failed to prove both substantive justification under Sections 43 and 45 and procedural compliance under Section 41, creating an irresistible inference of no fair hearing. The termination was declared unfair. Relief was limited: one month's salary in lieu of notice, three months' gross salary compensation under Section 49(1)(c), costs, interest, and a certificate of service within 30 days. Gratuity was declined as the contract made no provision, and exemplary damages were refused as seldom awarded in employment terminations. Judgment dated 4th December 2023 at Nairobi, delivered by Dr. Jacob Gakeri, Judge.

Key legal issues

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01

Competency of the suit against an insolvent employer

Holding

The suit was competently before the court because the claimant's dues had not crystallised and his employment was not terminated due to insolvency.

Reasoning

The respondent argued that Sections 66-69 of the Employment Act mandate applications to the Cabinet Secretary where an employer is insolvent. The court held these provisions apply to employees owed dues or terminated due to insolvency. Here the dues had not crystallised, so the statutory route was not engaged and the court's jurisdiction was unaffected.

p. 7
02

Substantive justification for termination

Holding

The respondent failed to prove a valid and fair reason for the dismissal; no notice to show cause, investigation report or evidence of fraud was produced.

Reasoning

Sections 43 and 45 place the burden on the employer to justify the grounds for termination. The dismissal letter alleged fraud, but the investigation report was never supplied to the claimant or the court, no notice to show cause was produced, and no evidence of the fraudulent transactions was adduced. The court could rely only on the dismissal letter and found the employer failed on a balance of probabilities.

p. 9
03

Procedural fairness of the termination

Holding

The dismissal was procedurally unfair; the respondent did not prove that a disciplinary hearing was convened or that the claimant was heard.

Reasoning

Section 41 requires notification of grounds, a hearing, the right of accompaniment, and consideration of representations. Although the respondent asserted a hearing on 20th March 2014, no invitation, minutes or recommendations were availed; the liquidator witness could not confirm the committee's membership. This failure created the irresistible inference that no fair hearing occurred, breaching Section 41 and Section 45(2)(c).

p. 7
04

Withdrawal of criminal charges under Section 87(a) CPC

Holding

The withdrawal of criminal charges did not itself decide the fairness of the dismissal, which turned on the employer's own proof of reason and procedure.

Reasoning

The claimant was charged with conspiracy to defraud and stealing by servant, but the charges were withdrawn under Section 87(a) of the Criminal Procedure Code. The respondent argued that criminal and disciplinary processes are distinct with different standards of proof. The court assessed the dismissal on the employer's evidence under Sections 41, 43 and 45 and found it had proved neither.

p. 8
05

Quantum of relief

Holding

Claimant awarded one month's salary in lieu of notice, three months' gross salary as compensation under Section 49(1)(c), costs, interest, and a certificate of service.

Reasoning

Compensation under Section 49(1)(c) was assessed at three months' gross salary considering the short service of about 1 year 7 months, absence of warning letters, the lack of appeal and no expressed wish to continue in employment. Notice pay followed because the respondent adduced no evidence of compliance with Section 36. A certificate of service was mandatory under Section 51.

p. 10

Legal principles established

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  • An employer bears the burden of proving a valid and fair reason (substantive justification) and a fair procedure for termination
  • Failure to produce the notice to show cause, investigation report, or disciplinary hearing minutes leads to an inference of no fair hearing
  • Sections 66-69 of the Employment Act do not bar a claim where terminal dues have not crystallised at the time of filing

Court orders

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  1. 1.One month's salary in lieu of notice
  2. 2.Equivalent of 3 months gross salary as compensation
  3. 3.Costs of this suit
  4. 4.Interest at court rates from date of judgment till payment in full
  5. 5.Certificate of service to be issued within 30 days from the date of the judgment
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (first-instance unfair termination claim)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Nderitu v Chase Bank (K) Limited (In Receivership) & 2 others (Cause 365 of 2017) [2023] KEELRC 3180 (KLR)", Case Analysis (2023). Not stated in the judgment text provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/3180/eng@2023-12-04

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.