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ELRCDismissedNot stated in the judgment as provided· [2024] KEELRC 412 (KLR)

Mutai v Co-operative Bank of Kenya (Cause 16 of 2020) [2024] KEELRC 412 (KLR)

Employment and Labour Relations Court
28 February 2024
4,328 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~17 min to read original · ~4 min brief

The bottom line

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A Kenyan bank lawfully dismissed an employee over fraud allegations even though he was later acquitted in criminal court, because workplace disciplinary cases use a lower standard of proof.

What this practically means

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Executive summary

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The Claimant, formerly a Graduate Clerk employed by the Respondent Bank from 2013 and confirmed on permanent and pensionable terms in 2016, was summarily dismissed on 16th January 2017 following allegations that his user credentials ('jmutai') were used on an unauthorised computer (HSE01H001) introduced into the Bank's network, which accessed the Jojami General Suppliers account and facilitated fraudulent loan disbursements totalling Kshs. 75,235,000/- transferred to 37 accounts. He claimed unlawful and unfair termination, seeking re-engagement or alternatively twelve months' gross salary (Kshs. 1,034,820/-), interest and costs. The Respondent maintained the dismissal followed due process under its Code of Conduct, Staff Manual, the CBA and sections 41, 43 and 44 of the Employment Act, and counterclaimed for outstanding personal and laptop loans of Kshs. 506,507/- with commercial interest. The Claimant was acquitted in the related criminal case on 7th December 2023, but the Court held that disciplinary proceedings are determined on a balance of probability and that acquittal does not invalidate a dismissal absent manifest procedural and substantive unfairness. The Court found the Respondent discharged its burden under section 43 and followed fair procedure, including notification, hearing and a right of appeal which the Claimant did not exercise. The claim was dismissed with no order as to costs. Judgment was entered for the Respondent on the counterclaim for Kshs. 506,507/- plus costs of the suit, but the Court declined to award interest, citing the Claimant's weak economic position and the reconciliation objective under Article 159(2)(c). Judgment delivered at Nairobi on 28th February 2024 by Nzioki Wa Makau, J.

Key legal issues

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01

Whether termination was substantively and procedurally fair

Holding

Termination was fair; the Respondent's forensic evidence and adherence to its procedures and section 41 of the Employment Act sufficed

Reasoning

Forensic investigations established that an unauthorised computer installed with the bank's BFUB system accessed customer accounts under the Claimant's user 'jmutai', including the Jojami General Suppliers account, which later received fraudulently disbursed loans. The Court found this sufficient basis for disciplinary proceedings. The Claimant was notified, heard, given minutes, and informed of his right to appeal but did not appeal. The Respondent followed its Code of Conduct, Staff Manual and circulars, discharging its mandate under section 43.

p. 7
02

Effect of criminal acquittal on disciplinary termination

Holding

Acquittal does not invalidate the dismissal because disciplinary proceedings are decided on a balance of probability, not beyond reasonable doubt

Reasoning

The Claimant was acquitted in the criminal case on 7th December 2023, but the Court held the dismissal was not tested on the criminal threshold. Relying on the Court of Appeal precedent, internal disciplinary proceedings anchored on the employment contract require proof on a balance of probability, whereas criminal proceedings require proof beyond reasonable doubt. For a court to overturn a termination there must be manifest unfairness, both procedural and substantive, which was absent here.

p. 7
03

Counterclaim for outstanding loans

Holding

Respondent entitled to judgment for Kshs. 506,507/- as the Claimant admitted the debt, but without interest

Reasoning

The Claimant admitted the sum owed on his personal and laptop loans. Judgment was entered for the Respondent for the admitted amount. On interest, the Court exercised discretion considering the parties' conduct, the circumstances of the suit and the Claimant's weak economic position, finding an interest award potentially debilitating, and declined to award interest pursuant to the reconciliation objective in Article 159(2)(c).

p. 7

Legal principles established

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  • Where an employer discharges its mandate under section 43 of the Employment Act by proving reasons it genuinely believed to exist, the termination is fair notwithstanding an acquittal in criminal proceedings, which are judged on a higher standard of proof
  • Award of interest is discretionary and the Court may consider the conduct of the parties, the subject of litigation and the need to promote reconciliation

Court orders

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  1. 1.The Claimant's claim is dismissed with no order as to costs
  2. 2.Judgment entered for the Respondent against the Claimant on the counterclaim for Kshs. 506,507/-
  3. 3.The Respondent awarded costs of the suit on the counterclaim sum
  4. 4.No interest awarded on the counterclaim sum

Authorities

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Legislation

  • Constitution of KenyaArticle 41
  • Constitution of KenyaArticle 47
  • Constitution of KenyaArticle 159(2)(c)
  • Employment Act 2007section 12
  • Employment Act 2007section 41
  • Employment Act 2007section 43 (including 43(2))
  • Employment Act 2007section 44(3)
  • Employment Act 2007section 45 (including 45(2) and 45(5))
  • Employment Act 2007section 47(5)
  • Employment Act 2007sections 49 and 50
  • Employment and Labour Relations Court Actsection 12

Cases cited (9)

  • Grace Wanja Ng'ethe v Kivia Engeneering Services Limited
    [2023] KEELRC 1226 (KLR)
  • Kenya Plantation & Agricultural Workers Union v Finlays Horticulture Kenya Ltd
    [2015] eKLR
  • Christine Butoyi v Sheer Logic Management Consultants Ltd
    [2022] KEELRC 1456 (KLR)
  • Mahmud v Bank of Credit and Commerce International SA
    [1977] ICR 606, 621; [1998] AC 20, 45-46
  • Samson Thuku Mutiso v Diamond Trust Bank Kenya Limited
    [2015] eKLR
  • Evans Kamadi Misango v Barclays Bank of Kenya Limited
    [2015] eKLR
  • Kenya Revenue Authority v Reuwel Waithaka Gitahi & 2 others
    [2019] eKLR
  • Attorney General & another v Andrew Maina Githinji & another
    [2016] eKLR
  • Violet Kadala Shitsukane v Kenya Post Savings Bank, Nairobi
    [2020] eKLR (Civil Appeal No. 295 of 2016)
Jurisdiction invoked
Employment and Labour Relations Court Act, section 12; Employment Act 2007

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, "Mutai v Co-operative Bank of Kenya (Cause 16 of 2020) [2024] KEELRC 412 (KLR)", Case Analysis (2024). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/412/eng@2024-02-28

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