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ELRCPartially AllowedNot stated in the judgment· [2024] KEELRC 2113 (KLR)

Odero v Barclays Bank of Kenya Ltd (Cause 1504 of 2018) [2024] KEELRC 2113 (KLR)

Employment and Labour Relations Court
26 July 2024
6,228 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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The Claimant, a Contact Centre Agent of the Respondent Bank, was suspended on 3rd February 2017 amid investigations into internet banking fraud, issued a show cause letter on 4th April 2017, disciplined on 19th April 2017 and terminated on 25th April 2017 for alleged involvement in multiple internet banking frauds causing an actual loss of Kshs 14,954,323.20 and a potential loss of Kshs 20,720,210.00. He sued for declarations, compensation of Kshs 29,850,624.00, general damages, 12 months' salary under section 49 of the Employment Act, or reinstatement. The Respondent defended the termination as substantively and procedurally fair and counterclaimed Kshs 1,734,945.95 in outstanding staff loans. The Court framed four issues. On substantive fairness, it found the text messages between the Claimant and Nyamboga and the investigation report did not link the Claimant to fraud, and his contacts with Ouso were explained by loan-guarantor correspondence; the employer failed to prove the alleged fraud under sections 43(1) and 45(2) of the Employment Act. On procedure, the Court found the Claimant was given less than the three working days stipulated in the Respondent's own disciplinary policy to answer the show cause letter, and the investigation report was withheld contrary to the policy, following Rebecca Ann Maina; the termination was procedurally unfair. The Counterclaim failed because the exhibited bank statement showed nil balances on all loan items. Guided by section 49(4), the Court awarded compensatory damages of eight months' gross salary (Kshs 621,888.00) with interest, declined general damages, dismissed the Counterclaim without costs, and awarded the Claimant the costs of the Claim. Judgment was delivered at Nairobi on 26th July 2024 by Stella Rutto, Judge.

Key legal issues

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01

Substantive fairness of the termination

Holding

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

Reasoning

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.

p. 10
02

Procedural fairness

Holding

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

Reasoning

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).

p. 11
03

The Counterclaim for outstanding loans

Holding

The Counterclaim for Kshs 1,734,945.95 was not proved; the exhibited bank statement showed a nil balance on all loan items

Reasoning

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.

p. 11
04

Assessment of reliefs

Holding

Compensatory damages of eight months' gross salary (Kshs 621,888.00) awarded under section 49(4); general damages and 12 months' salary declined

Reasoning

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.

p. 11

Legal principles established

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  • 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

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  1. 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. 2.Interest on the award at court rates from the date of Judgment until payment in full
  3. 3.The Counterclaim is dismissed with no orders as to costs
  4. 4.The Claimant shall have the costs of the Claim

Authorities

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Legislation

  • Industrial Court Actsection 12(3)(iv) and (v)
  • Constitution of Kenya, 2010Articles 23(3), 27, 35(1)(b), 41(1) and (2)(a) and (b), 47(1), 50, 159(2)(d), 48
  • Employment Actsections 41(1), 43(1), 45(2)(a), (b) and (c), 49, 49(4)
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B

Cases cited (12)

  • Jane Wanja Muthara v EACC
    ELRC Cause No. 722 of 2015
  • GJK v KPMG Advisory Services
    (2017) eKLR
  • Oyatsi v Judicial Service Commission
    (Petition E111 of 2021) (2022) KEELRC 3 (KLR) (10 March 2022)
  • Chase Bank (Kenya) Limited v Cannon Assurance (K) Limited
    (2019) eKLR
  • Charles Oyieko Okumu v United Millers Limited
    (2021) eKLR
  • Benedict Mtoto Mwabili v County Public Service Board Taita Taveta County
    (2018) eKLR
  • Anthony Mkala Chitavi v Malindi Water & Sewerage Co. Limited
    (2013) eKLR
  • Anarita Karimi Njeru v Republic
    (1976-1980) KLR 1272
  • National Bank of Kenya Limited v Pipe Plastics Sumkolit (K) Ltd & Another
    (2001) KLR 112
  • Amatsi Water Services Company Limited v Francis Shire Chachi
    (2018) eKLR
  • Rebecca Ann Maina & 2 others vs Jomo Kenyatta University of Agriculture and Technology
    [2014] eKLR
  • Le Monde Luggage cc t/a Pakwells Petze vs Commissioner G. Dun and others
    Appeal Case No. JA 65/205
Jurisdiction invoked
Section 12(3) of the Industrial Court Act; Articles 41, 47, 50 of the Constitution invoked in the reliefs

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, "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.