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ELRCPartially AllowedCause No 326 of 2018· [2023] KEELRC 3286 (KLR)

Muriu v Family Bank Limited (Cause 326 of 2018) [2023] KEELRC 3286 (KLR)

Employment and Labour Relations Court
23 November 2023
6,146 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court found Family Bank fabricated disciplinary records and unfairly dismissed its employee, awarding her over Ksh. 519,000 plus costs.

What this practically means

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Executive summary

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The Claimant, formerly employed by Family Bank Limited as a Relationship Officer and later Credit Analyst from November 2012, claimed her employment was wrongfully and unlawfully terminated, seeking twelve months' salary, unpaid leave days, unpaid house allowance and salary in lieu of notice. The Respondent contended she was suspended in March 2015 over the alleged defrauding of a customer of Ksh. 4,500,000, was issued a show-cause letter, failed to attend a disciplinary hearing, and was summarily dismissed on 20th May 2015 for gross misconduct. The Court framed three issues: procedural and substantive fairness, entitlement to reliefs, and costs. On the burden of proof under section 47(5) of the Employment Act, the Court found the Claimant had discharged the initial prima facie burden and the burden shifted to the Respondent, which failed to discharge it. The Respondent's documents on the disciplinary process were riddled with contradictions: the hearing was scheduled for 15th April 2015, the minutes showed 20th May 2015, and the dismissal letter referred to a hearing on 6th May 2015 which its own witness admitted never took place, with no proof of service of the show-cause letter. The Court concluded the documents were deliberately fabricated to mislead it, and held the dismissal procedurally and substantively unfair, since the Respondent also withheld its investigation report and mere criminal charges cannot justify summary dismissal. Judgment was entered for the Claimant with a declaration of unfair termination, one month's salary in lieu of notice (Ksh. 64,975), five months' gross salary compensation (Ksh. 324,875), and unpaid leave compensation (Ksh. 129,950), with interest and costs. Claims for house allowance and service pay were refused, the former as statute-barred and on account of a consolidated salary, the latter because she was covered by NSSF and a pension scheme.

Key legal issues

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01

Whether the dismissal was procedurally fair under section 41 of the Employment Act

Holding

The dismissal was procedurally unfair: the Claimant was not notified of the intention and grounds for termination, was not invited to any disciplinary hearing, and was not accorded an opportunity to make representations. The Respondent's documents establishing the alleged process were found to have been fabricated to mislead the Court.

Reasoning

The show-cause letter scheduled the hearing for 15th April 2015, yet the minutes show a hearing on 20th May 2015 with no evidence of notification of a date change; the dismissal letter dated 20th May 2015 referred to a hearing on 6th May 2015 which the Respondent's witness admitted never took place. No proof of service of the show-cause letter was given. The Court found the discrepancies deliberate and held that the mandatory three-component procedure in section 41 was not followed.

p. 9
02

Whether there was substantive justification under sections 43 and 45(2) of the Employment Act

Holding

The Respondent failed to discharge its burden of proving a fair and valid reason; it withheld the investigation report, and the criminal charge alone did not justify summary dismissal.

Reasoning

Both witnesses' evidence indicated the Claimant was not involved in the investigations, and her acquittal heightened the need to place the investigation report before the Court. The Respondent opted not to, leading the Court to conclude the report would have prejudiced its case. Section 44 does not permit dismissal merely because an employee faces criminal charges, since criminal processes can be abused as the tort of malicious prosecution demonstrates.

p. 9
03

Burden of proof in unfair termination disputes

Holding

The Claimant discharged the initial burden under section 47(5) by establishing prima facie that the dismissal lacked procedural fairness and valid grounds, shifting the burden to the Respondent, which failed to discharge it.

Reasoning

Section 47(5) places two different burdens: the employee bears the initial burden, the employer a shifted one. Relying on Josphine M. Ndungu and Muthaiga Country Club v Kudheiha Workers, the Court found the Claimant had demonstrated, prima facie, that her dismissal was not procedurally fair nor on valid grounds, and the Respondent failed to justify it.

p. 7

Legal principles established

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  • Substantive justification and procedural fairness together form the total unit of fairness; the absence of either renders a termination unfair.
  • Under section 47(5) of the Employment Act the employee bears the initial burden of establishing prima facie that a termination occurred and was wrongful or unfair, whereupon the burden shifts to the employer.
  • An employee's mere charge with a criminal offence is not, of itself, a valid ground for summary dismissal under section 44 of the Employment Act.
  • Counsel's submissions are not a substitute for evidence.

Court orders

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  1. 1.A declaration that the dismissal of the Claimant from employment was both procedurally and substantively unfair
  2. 2.One month's salary in lieu of notice of Ksh. 64,975.00
  3. 3.Five months' gross salary as compensation under section 49(1)(c) of the Employment Act, Ksh. 324,875.00
  4. 4.Compensation for earned but unutilized leave days of Ksh. 129,950.00
  5. 5.Interest on the sums awarded at court rates from the date of judgment until full payment
  6. 6.Costs of the suit to the Claimant

Authorities

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Legislation

  • Employment Actsection 41
  • Employment Actsections 43, 44, 45, 47
  • Employment Actsection 49(1)(c)
  • Employment Actsection 31(1) and (2)
  • Employment Actsection 35(5) and 35(6)
  • Employment Actsection 74
  • Employment Actsection 90
  • Penal Codesection 268(1) as read with section 275
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48
  • Civil Procedure ActSection 1B
  • Civil Procedure RulesOrder 21 Rule 1

Cases cited (8)

  • Ogutu vs Cabinet Secretary, Ministry of Lands & Physical Planning & 9 others; Natembeya & 2 others [Third Party]
    [Environment & Land Petition 7 of 2021] [2022] KEELC 2680 [KLR]
  • MTG vs Republic
    [Criminal Appeal E067 of 2021] [2022] KEHC 189 [KLR]
  • David Ojeabuo vs The Federal Republic of Nigeria
  • MEEK vs FLEMING
    [1961] QB 366
  • Galgalo Jarso Jillo vs Agricultural Finance Corporation
    [2021] eKLR
  • Josephine M. Ndungu & Others V Plan International Inc.
    [2019] eKLR
  • Kenya Revenue Authority v Reuwel Waithaka Gitahi & 2 others
    [2019] eKLR
  • Muthaiga Country Club vs Kudheiha Workers
    [2017] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (employment dispute over unfair termination)

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, "Muriu v Family Bank Limited (Cause 326 of 2018) [2023] KEELRC 3286 (KLR)", Case Analysis (2023). Cause No 326 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/3286/eng@2023-11-23

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