Muriu v Family Bank Limited (Cause 326 of 2018) [2023] KEELRC 3286 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the dismissal was procedurally fair under section 41 of the Employment Act
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.
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.
Whether there was substantive justification under sections 43 and 45(2) of the Employment Act
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.
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.
Burden of proof in unfair termination disputes
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.
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.
Legal principles established
#- 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
#- 1.A declaration that the dismissal of the Claimant from employment was both procedurally and substantively unfair
- 2.One month's salary in lieu of notice of Ksh. 64,975.00
- 3.Five months' gross salary as compensation under section 49(1)(c) of the Employment Act, Ksh. 324,875.00
- 4.Compensation for earned but unutilized leave days of Ksh. 129,950.00
- 5.Interest on the sums awarded at court rates from the date of judgment until full payment
- 6.Costs of the suit to the Claimant
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (employment dispute over unfair termination)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.