Odero v Barclays Bank of Kenya Ltd (Cause 1504 of 2018) [2024] KEELRC 2113 (KLR)
The bottom line
#A Kenyan court ruled a bank unfairly fired a Contact Centre Agent over fraud it could not prove, awarding him eight months' salary plus costs.
What this practically means
#Executive summary
#Key legal issues
#Substantive fairness of the termination
The Respondent failed to prove the Claimant's involvement in internet banking fraud; the text messages and investigation report did not link him to fraud
The Court reviewed the text messages between the Claimant and Nyamboga and found no evidence of fraud. The investigation report only showed a request to log in because Nyamboga was late. Communication with Ouso was explained by loan-guarantor correspondence from the Kenya Bankers Association, which the Respondent did not rebut. The employer therefore failed to meet the standard in sections 43(1) and 45(2) of the Employment Act.
Procedural fairness
The termination was procedurally unfair: the Claimant was given less than the three working days stipulated in the Respondent's own policy to respond to the show cause letter, and the investigation report was withheld from him
Clause 5.3.1.1 of the Respondent's Disciplinary Policy provided three working days to respond, but the Claimant received the show cause letter on 6th April 2017 and had to reply by 5:00 pm the next day. The policy also required provision of relevant extracts of the investigation report, and the Respondent gave no plausible reason for withholding it. Following Rebecca Ann Maina, the Court held this breached procedural fairness under section 41(1).
The Counterclaim for outstanding loans
The Counterclaim for Kshs 1,734,945.95 was not proved; the exhibited bank statement showed a nil balance on all loan items
The bank statement exhibited by the Respondent showed the principal, interest and penalty balances as "0" as of 31st August 2017. RW1 explained defaults are written off from the books, but the Court found nothing remained for the Court to award. The Counterclaim therefore failed for want of proof.
Assessment of reliefs
Compensatory damages of eight months' gross salary (Kshs 621,888.00) awarded under section 49(4); general damages and 12 months' salary declined
Guided by section 49(4), the Court considered the length of employment and the circumstances of termination and awarded eight months' gross salary. General damages were declined as compensatory damages should make good the loss, following the South African decision in Le Monde Luggage. Reinstatement was not granted.
Legal principles established
#- An employer bears the burden of proving that the reason for termination is valid and fair under sections 43(1) and 45(2) of the Employment Act; failure renders termination unfair
- An employee must be afforded sufficient time to respond to allegations and must be entitled to documents in the employer's possession that would assist in preparing their defence
- Compensatory damages under section 49(4) serve to make good the employee's loss, not to punish the employer; general damages are not additionally awardable
Court orders
#- 1.The Claimant is awarded compensatory damages in the sum of Kshs 621,888.00 being equivalent to eight (8) months of his gross salary
- 2.Interest on the award at court rates from the date of Judgment until payment in full
- 3.The Counterclaim is dismissed with no orders as to costs
- 4.The Claimant shall have the costs of the Claim
- Jurisdiction invoked
- Section 12(3) of the Industrial Court Act; Articles 41, 47, 50 of the Constitution invoked in the reliefs
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Odero v Barclays Bank of Kenya Ltd (Cause 1504 of 2018) [2024] KEELRC 2113 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2113/eng@2024-07-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.