Chege v Bank of Baronda (Kenya) Limited (Cause 59 of 2023) [2024] KEELRC 1399 (KLR)
The bottom line
#A Kenyan court upheld a bank employee's summary dismissal for abusive language, awarding him only travel reimbursements totalling about Ksh.62,245.
What this practically means
#Executive summary
#Key legal issues
#Whether the summary dismissal was substantively and procedurally fair
The dismissal was procedural and justified; the claimant was suspended, notified of allegations, heard by a properly reconstituted panel, accompanied by an advocate, and had a right of appeal
The claimant admitted using the words 'malaya haishimiwe'. Section 44(4)(d) of the Employment Act classifies abusive or insulting language as gross misconduct justifying summary dismissal. He received notice, witness statements, a hearing with representation by an advocate of his choice, and an appeal. Although the initial suspension relied on a policy clause the record of which was incomplete, suspension pending investigations is an employer's prerogative. The claimant fell into a trap of his own making and cannot blame junior staff.
Whether there was sexual harassment
No case of sexual harassment was found; the dismissal notice related to abusive and insulting language, which is distinct from sexual harassment
The court distinguished the two concepts: sexual harassment is outlawed under Section 5 of the Employment Act, while abusive or insulting language is gross misconduct under Section 44. The summary dismissal notice cited only abusive and insulting language. However, the court noted the respondent's failure to have a sexual harassment policy as required by Section 5 for employers of 20 or more employees.
Whether the claimant was discriminated against through constant transfers
No discrimination found; transfers were the employer's prerogative and the claimant's own conduct necessitated change
The claimant pleaded discrimination by constant transfers but did not pursue it or seek relief. The respondent's evidence of prior complaints and a criminal incident at Sarit Centre was uncontroverted. Transfer is an employer's prerogative based on business needs, subject to reasonable notice. The court found no discrimination.
Whether the salary reduction and withheld increments constituted unfair labour practices and underpayment
The reduction in salary followed a due disciplinary process and was never challenged; the underpayment claim fails
Following findings of irregular and unauthorized transactions at the Thika branch, the claimant was heard and sanctioned with a 5-stage salary reduction. He did not challenge that sanction. Demotion or salary reduction requires due process, which was accorded. As a senior banking officer he was held to high standards of integrity and financial probity. The associated disturbance allowance and leave encashment claims, premised on the underpayment, also fail.
Whether the transport claims were statute-barred
The 2006 claim for transport of personal goods (Ksh.55,385) and the air ticket and taxi costs (Ksh.6,860) are payable
The respondent argued the 2006 transport claim was statute-barred, but with continuous employment the claimant had up to 3 years from the summary dismissal to claim dues under Section 90 of the Employment Act. He produced a receipt for Ksh.55,385. The circular of 30 June 2010 supported the air ticket and taxi claim of Ksh.6,860 upon the Nakuru–Nyali transfer.
Legal principles established
#- Transfer or redeployment of an employee is the employer's prerogative based on business needs
- Suspension pending investigations is ordinarily part of the disciplinary process even absent an express contractual provision
- Use of abusive or insulting language at the workplace constitutes gross misconduct justifying summary dismissal under Section 44(4)(d) of the Employment Act
- Where an employer fails to produce the written contract or particulars, the burden of proving or disproving the alleged term falls on the employer under Section 10(7) of the Employment Act
- Banks and their staff must maintain a high degree of integrity, prudence and financial probity; conduct pointing to fraud risks termination
- With continuous employment, claims for employment dues survive until within 3 years of termination under Section 90 of the Employment Act
- Employers with 20 or more employees must issue a policy statement on sexual harassment under Section 5 of the Employment Act
Court orders
#- 1.Claimant to be paid air ticket and taxi costs amounting to Ksh.6,860
- 2.Claimant to be paid transport/air ticket and goods amounting to Ksh.55,385
- 3.Each party to bear its own costs
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment disputes (Employment Act, 2007)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Chege v Bank of Baronda (Kenya) Limited (Cause 59 of 2023) [2024] KEELRC 1399 (KLR)", Case Analysis (2024). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1399/eng@2024-05-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.