Khayeli v Kenya Commercial Bank Limited (Cause 803 of 2018) [2024] KEELRC 2280 (KLR)
The bottom line
#A Kenyan court dismissed a bank manager's unfair dismissal claim and ordered her to repay Kshs 4.66 million lost through broken cash handling rules.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Claimant's dismissal from employment was unfair and unlawful
- 2.Whether the parties are entitled to the reliefs sought
Key legal issues
#Whether the Respondent had fair and valid reasons to dismiss the Claimant (substantive fairness)
Yes - the Respondent proved failure to account for Kshs 4,664,000 of reserve cash and the Claimant's breach of cash handling procedures
The Claimant admitted she was a vault custodian who removed cash without a reserve cash out slip, register entry or dual authorisation, held cash in a mini-safe and left the vault open, claiming a custom at Ngara Branch and permission to leave which the branch manager denied. Her conduct, including Kshs 252,000 in her handbag with no proof of withdrawal, smacked of complicity in the shortage found at the surprise check.
Whether the termination followed a fair procedure (procedural fairness under section 41 Employment Act)
Yes - the Claimant received a show cause/invitation letter setting out the charges, a hearing with a representative of her choice, rescheduling on request, and an appeal which was heard and dismissed
The show cause letter doubled as the invitation to the disciplinary hearing and contained the charges. The hearing originally set for 26th July 2016 was postponed at the Claimant's request to 2nd August 2016 because her preferred lawyer was unavailable; she attended with an employee representative, responded to all allegations, and her internal appeal was determined by the appeals committee.
Whether the Respondent's counterclaim for Kshs 4,664,000 was merited
Yes - the Respondent reasonably proved to the required standard that the Claimant caused or was responsible for the loss
The investigation report dated 19th July 2016 held the Claimant liable as main custodian of the vault; cash was found in the possession of the Claimant and a teller who facilitated debiting of her account after she left the premises; she had Kshs 252,000 in her handbag with no evidence of the withdrawal she claimed, and her conduct of escaping through the mantrap when called for the surprise check weighed against her.
Legal principles established
#- Termination must satisfy both substantive and procedural fairness to pass the fairness test
- The business of banking demands extreme prudence, caution and security in handling cash at all times
- A branch custom cannot displace an employer's laid-down bank policies and cash handling procedures
Court orders
#- 1.The Claimant's claim is dismissed with costs
- 2.Judgment is entered against the Claimant in the sum of Kshs 4,664,000 in favour of the Respondent on the counterclaim
- 3.The Respondent shall have costs of the suit
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Original jurisdiction as the first-instance court hearing an Employment Act claim and counterclaim (particular provision not stated in the judgment)
Relief refused
#Declaration that dismissal was unprocedural, unfair, unlawful and unconstitutional
The Court found the Respondent had fair and valid reasons and followed a fair procedure
Reinstatement as Assistant Manager
Dismissal found lawful; not considered applicable
12 months' salary compensation and 3 months' salary in lieu of notice
Claim dismissed as without merit
Certificate of service
Ancillary to the dismissed claim
Costs
The Claimant's claim was dismissed with costs; the Respondent shall further have costs of the suit.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
In conclusion the Court finds the claimant's claim without merit and hereby dismisses the same with costs. The Court however enters judgment against the claimant in the sum of Kshs 4,664,000= in favour of the respondent.
The respondent shall further have costs of the suit.
It is now established that in order for a termination to pass the fairness test, there must be both substantive and procedural fairness.
The business of banking is a highly sensitive one as it involves handling cash belonging to customers some of whom have deposited their entire lifetime savings in the bank for safe custody.
the Court finds and holds that the Respondent had fair and valid reasons to terminate the Claimant service and that the termination was done in accordance with a fair procedure.
Issues in the judgment
#Case number and neutral citation are not stated anywhere in the judgment text
Internal inconsistency in the judgment text as to the effective date of the appeal decision (text reads '6th October,2017' for an appeal meeting said in the Response to have been on 19th August,2016 with decision letter of 25th October,2016)
The judgment does not state the ELRC case number or the name of the parties beyond 'Claimant' and 'Respondent'
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Khayeli v Kenya Commercial Bank Limited (Cause 803 of 2018) [2024] KEELRC 2280 (KLR)", Case Analysis (2024). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2280/eng@2024-09-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.