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ELRCPartially AllowedCause No 670 of 2019· [2024] KEELRC 1290 (KLR)

Kitheka & another v Harambee Sacco Society (Cause 669 & 670 of 2019 (Consolidated)) [2024] KEELRC 1290 (KLR)

Employment and Labour Relations Court
27 May 2024
5,599 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~22 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court ruled a Sacco fairly suspected negligence but unfairly dismissed two workers because it hid the audit evidence behind the charges.

What this practically means

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Executive summary

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Two long-serving employees of a Sacco (Mary M. Kitheka, employed 1989, and Alice Njeri Wanuthi, employed 1995) were summarily dismissed in March 2019 after an internal audit implicated them in fraudulent Msacco platform withdrawals totalling over Kshs.1.3 million, on grounds they failed to verify updated mobile numbers linked to members' FOSA accounts. They claimed unfair termination and a range of terminal benefits; the Respondent defended the dismissal and counterclaimed for outstanding Jisaidie 72 loans. The court held the dismissal was substantively justifiable, as the audit attributed the fraudulent account updates to the Claimants and the Respondent genuinely believed, on reasonable grounds, that negligence had occurred. However, the termination was procedurally unfair because the Respondent withheld the Internal Audit Report on which the charges were based, denying the Claimants an effective defence contrary to natural justice. The court declared the withholding of evidence and the termination unfair, awarded each Claimant the equivalent of three months' gross salary under Section 49(1)(c) of the Employment Act, and directed the Claimants to continue servicing their outstanding loans, declining the set-off. All other heads of claim - notice pay, service pay, leave pay, loan discount, salary for days worked, medical cover, age discrimination and exemplary damages - were declined for want of particulars or evidence. Judgment was dated, signed and delivered virtually at Nairobi on 27th May 2024 by Dr. Jacob Gakeri J, with 50% costs to the Claimants.

Key legal issues

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01

Whether the dismissal was substantively justified

Holding

The Respondent proved on a balance of probabilities a valid and fair reason - the Claimants' failure to verify members' details facilitated the fraudulent Msacco transactions

Reasoning

The internal audit report of November 2018 showed mobile numbers of non-members were updated into members' bio data and linked to FOSA accounts, with withdrawals effected days later. The audit attributed the updates to the Claimants. Having pleaded and testified that their duties included updating members' details, the findings indicted them. The employer need only show a genuine belief on reasonable grounds.

p. 10
02

Whether the disciplinary procedure was fair

Holding

The procedure was unfair because the Respondent withheld the Internal Audit Report on which the charges were based, impairing the Claimants' defence

Reasoning

Fair hearing requires the accused party to be supplied with the evidence the accuser intends to rely on. The Respondent's HR officer could not confirm the documents were availed and agreed they ought to have been supplied. Withholding the audit report jeopardised the Claimants' ability to challenge the evidence, rendering the termination procedurally flawed.

p. 11
03

Entitlement to reliefs

Holding

Three months' gross salary awarded to each Claimant; most other heads declined for lack of particulars or evidence

Reasoning

Compensation was assessed considering long service of about 29 and 23 years, the first warning against Mary Kitheka, and the Claimants' substantive contribution to the termination. Notice pay, service pay, leave pay, loan discount, medical cover and exemplary damages all failed for want of evidence or particulars.

p. 12
04

Whether the Respondent's counter claim should be allowed

Holding

The set-off was declined; the Claimants are to continue servicing their outstanding loans

Reasoning

The Claimants acknowledged the outstanding loans in their evidence. Rather than awarding the counterclaimed sums or ordering set-off, the court directed continuation of loan repayment as during employment.

p. 13

Legal principles established

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  • An employer must supply an accused employee with the evidence and documents it intends to rely on before a disciplinary hearing, failing which the termination is procedurally unfair
  • A termination is fair only if the employer proves both a valid and fair reason and procedural fairness
  • Substantively justified but procedurally unfair termination attracts compensation under Section 49(1)(c) but not notice pay

Court orders

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  1. 1.Declaration that the act of the Respondent of withholding evidence which formed the basis of termination of the Claimants' employment was unfair, unlawful and in breach of the rules of natural justice
  2. 2.Declaration that termination of the Claimants' employment by the Respondent was unfair
  3. 3.Equivalent of 3 months' gross salary for each of the Claimants under Section 49(1)(c) of the Employment Act, 2007
  4. 4.Claimants to continue servicing the outstanding loans with the Respondent
  5. 5.50% costs of the suit to the Claimants

Authorities

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Legislation

  • Employment Act, 2007Sections 41, 43, 44, 45, 45(2), 47(5), 49, 49(1)(c)
  • Fair Administrative Action ActNot specified
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B
  • Constitution of KenyaArticles 159(2)(d), 48

Cases cited (13)

  • National Bank of Kenya v Njue John
    (2019) eKLR
  • Stanely Mwangi Gachungu & Another v Barclays Bank of Kenya Ltd
    (2019) eKLR
  • Mary Chemweno Kiptui v Kenya Pipeline Company Limited
    (2014) eKLR
  • Galgalo Jarso Jillo v Agricultural Finance Corporation
    (2021) eKLR
  • Simon Karuga Waweru v Twiga Stationeries Limited
    (2019)
  • Pius Machafu Isindu v Lavington Security Guards Ltd
    (2017) eKLR
  • Naima Khamis v Oxford University Press (EA) Ltd
    (2017) eKLR
  • Walter Ogal Anuro v Teachers Service Commission
    (2013) eKLR
  • Kenya Revenue Authority v Reuwel Waithaka Gitahi & 2 others
    (2019) eKLR
  • British Leyland (UK) Ltd v Swift
    (1981) I.R.L.R 91
  • Postal Corporation of Kenya v Andrew K. Tanui
    (2019) eKLR
  • Rookes v Barnard & others
    (1964) AC 1129
  • Obonyo & another v Municipal Council of Kisumu
    (1971) EA 91
Jurisdiction invoked
First-instance employment claim under the 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, "Kitheka & another v Harambee Sacco Society (Cause 669 & 670 of 2019 (Consolidated)) [2024] KEELRC 1290 (KLR)", Case Analysis (2024). Cause No 670 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1290/eng@2024-05-17

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