Mwai v Family Bank Limited (Cause E493 of 2021) [2024] KEELRC 868 (KLR)
The bottom line
#A Kenyan court ruled a bank unfairly fired its employee because it couldn't prove misconduct and gave her too little time to defend herself.
What this practically means
#Executive summary
#Key legal issues
#Valid and fair reason for termination
The Respondent failed to prove a valid and fair reason; the termination was substantively unjustified
The Respondent alleged breach of clauses of its Human Resource Policy and Code of Conduct but did not exhibit those documents, so the Court could not assess the alleged misconduct against them. Further, the Respondent did not explain how the petroleum business conflicted with its banking business, and RW1 admitted the two are not in conflict. Nor did the Respondent explain in what way the account transactions were unclear. The alleged reason was therefore not proved under sections 43(1) and 45(2)(a) and (b) of the Employment Act.
Fairness of the disciplinary process
The process was procedurally unfair due to insufficient notice and vague accusations
The Claimant was required to respond to the show cause letter by close of business the following day and was given one day's notice of the disciplinary hearing. The Court held that what amounts to reasonable notice depends on the circumstances; given the gravity of the allegations, the notice was insufficient and impaired her ability to prepare, including psychologically. The accusations were also made in general terms, further impairing her defence.
Entitlement to reliefs
Compensation of six months' gross salary and the 2020 bonus were awarded; notice pay, leave and March salary claims were declined
Having found the termination substantively unjustified and procedurally unfair, the Court awarded six months' gross salary as compensatory damages, considering the length of the employment and the circumstances of termination. The bonus claim succeeded because the Claimant was on the payroll as at 30th September 2020 and there was no evidence her performance disentitled her. Claims for notice pay, leave and salary for days worked failed as she admitted receiving them.
Legal principles established
#- An employer must exhibit the policies alleged to have been breached; absent the policy documents, the court cannot evaluate whether the reason for termination was fair and valid
- The law does not prescribe a timeframe for notice of a disciplinary hearing; reasonableness depends on the circumstances of each case, and inadequate notice renders the process procedurally unfair
- Compliance with section 41 at face value is insufficient; the spirit of the provision must be fulfilled for the process to be fair
Court orders
#- 1.A declaration that the termination of the Claimant's employment was unfair
- 2.The Claimant is awarded compensatory damages in the sum of Kshs 2,250,000.00 being equivalent to six (6) months of her gross salary
- 3.The Claimant is awarded bonus pay for the year 2020 being the sum of Kshs 375,000.00
- 4.The total award is Kshs 2,625,000.00
- 5.Interest on the amount in (d) at court rates from the date of Judgment until payment in full
- 6.The Claimant shall also have the costs of the suit
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act (employment relationship between the parties)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mwai v Family Bank Limited (Cause E493 of 2021) [2024] KEELRC 868 (KLR)", Case Analysis (2024). Cause No E493 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/868/eng@2024-04-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.