Bora & another v First Community Bank Ltd (Cause E024 of 2022) [2023] KEELRC 3331 (KLR)
The bottom line
#A Kenyan court ruled a bank unfairly fired two staff blamed for an armed robbery, awarding each ten months' salary because the bank couldn't prove negligence.
What this practically means
#Executive summary
#Key legal issues
#Validity and fairness of the reason for dismissal
The respondent failed to prove a valid and fair reason; the claimants were victims of armed robbery, not negligent
The reason cited was gross misconduct for breach of vault management policies. The investigator never testified before the disciplinary committee or the court and his report was not produced, making the evidence hearsay. The criminal trial exonerated the claimants, the bank admitted no armed police guarded the branch, and the claimants' account of being robbery victims was unrebutted. Resistance would likely have cost them their lives, so blame for the loss was unfounded.
Procedural fairness under section 41 of the Employment Act
Fair procedure was followed
The claimants were notified of the allegations, invited to a disciplinary hearing, informed of their right to be accompanied by a representative of their choice (which they waived), given an opportunity to explain and to make representations which the committee considered before dismissing them. The absence of witnesses testifying against them went to the substantive justification rather than procedure, and the reference to a 20th March 2019 hearing was explained as an error.
Remedies for unfair dismissal
Each claimant awarded 10 months' gross salary as compensation under sections 49 and 50 of the Employment Act
Having served over eight years without disciplinary issues and facing likely exclusion from the banking sector after dismissal, the claimants merited substantial compensation. The court exercised discretion to award ten months' gross salary each rather than the twelve months sought, subject to statutory deductions. Punitive damages for the criminal prosecution were declined as the prosecution was not shown to be the respondent's act.
Legal principles established
#- The employer bears the burden of proving a valid and fair reason for termination and that fair procedure was followed; where the reason is not proved the termination is unfair
- Hearsay evidence of an investigator who neither testified before the disciplinary committee nor in court cannot substantiate the grounds for dismissal
Court orders
#- 1.Judgment entered that the dismissal of the claimants was unfair and unlawful
- 2.1st claimant awarded Kshs.1,134,020.00 (10 months' gross salary at Kshs.113,402)
- 3.2nd claimant awarded Kshs.784,949.00 (10 months' gross salary at Kshs.78,494.90)
- 4.The award is subject to statutory deductions
- 5.Claimants awarded costs plus interest at court rate from the date of judgment
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act (suit for unfair termination)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Bora & another v First Community Bank Ltd (Cause E024 of 2022) [2023] KEELRC 3331 (KLR)", Case Analysis (2023). Not stated in judgment (ELRC suit at Nyeri). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/3331/eng@2023-12-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.