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ELRCPartially AllowedNot stated in the judgment as provided· [2024] KEELRC 2399 (KLR)

Mwangi v Absa Bank Kenya PLC (Cause E065 of 2023) [2024] KEELRC 2399 (KLR)

Employment and Labour Relations Court
1 October 2024
7,203 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~29 min to read original · ~4 min brief

The bottom line

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A Kenyan court confirmed a bank manager's sacking was fair but fined the bank Ksh 5 million for spying on his private life during suspension.

What this practically means

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Executive summary

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The claimant, formerly senior branch manager at the respondent bank's Nkrumah Road branch, Mombasa, sued over his termination on May 26, 2023 following allegations of irregular and unauthorized overdraft facilities to two customers, DM Kanyi and Safinah Petroleum. He sought damages for defamation and character assassination, unpaid 2022 bonus of Ksh 2.3 million, 12 months' compensation, notice pay, 13% salary increments and a certificate of service. The court framed three issues: unfair termination, breach of constitutional rights, and remedies. On termination, the court found valid reasons: the claimant bought a unit from and deposited Ksh 500,000 into defaulting customer DM Kanyi's account without filing the C-Zone conflict of interest form, his sale agreement was discredited in forensic audit, and he breached the SME Banking Procedure Manual on the Safinah account. As branch manager he could not blame juniors; termination was justified and due process was followed, so 12 months' compensation was refused. However, the respondent breached the claimant's Article 31 privacy rights by engaging private investigators to surveil his private life while on suspension, attracting a declaration and general damages of Ksh 5,000,000. The communicated 2022 bonus of Ksh 2.3 million could not be retrospectively withdrawn, which would be an unfair labour practice. The 13% salary increment for January to May 2023 was awarded because the published policy removed the employer's discretion. Notice pay of Ksh 647,218 was unpaid. The claimant to complete clearance for his Certificate of Service; each party bears its costs. Judgment delivered at Mombasa on October 1, 2024 by M. Mbarũ, Judge.

Key legal issues

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01

Validity of reasons for termination

Holding

Termination was justified - the claimant breached conflict of interest policy and lending procedures

Reasoning

The claimant, as branch manager, transacted with a defaulting customer (buying a unit from DM Kanyi, depositing Ksh 500,000) without filing the required C-Zone conflict of interest form; the sale agreement was found defective in a forensic audit. On the Safinah account he failed to manage excesses per the SME Banking Procedure Manual and directed issuance of a repossession order while the facility was not in arrears. As the officer with overall leadership of the branch he could not blame juniors.

p. 14
02

Procedural fairness of the disciplinary process

Holding

Due process was followed

Reasoning

The claimant was given notice to show cause, replied, was invited to a disciplinary hearing with representation of his choice, attended, and appealed. His responses were found unsatisfactory. Disputes over the accuracy of minutes did not render the process unfair. Hence no 12-month compensation under section 49 was due, though notice pay remained unpaid.

p. 15
03

Breach of privacy under Article 31 of the Constitution

Holding

The respondent breached the claimant's privacy by engaging private investigators into his personal life

Reasoning

While on suspension the claimant was followed in public places and establishments were asked for information about him. This data collection was unrelated to his work conduct, was never justified, and was not addressed in the respondent's response. The court relied on privacy jurisprudence holding that intrusions into private life are demeaning to dignity and must be vigorously protected.

p. 16
04

Unpaid 2022 performance bonus

Holding

Claim allowed - the communicated bonus could not be withdrawn retrospectively

Reasoning

The bonus for 2022 performance had been communicated to the claimant by his supervisor before the disciplinary process commenced in March 2023. The policy withholding bonuses from employees under investigation could not operate backwards to defeat an already accrued and communicated benefit; doing so amounts to unfair labour practice.

p. 17
05

13% salary increment from January to May 2023

Holding

Awarded at Ksh 373,294 despite the absence of an automatic increment clause

Reasoning

Once a policy known to all employees provided that increments of the stated percentage were due, the employer's discretion was removed. The disciplinary process, during which the claimant was not in control of his employment, could not be used to deny benefits accruing while employment subsisted.

p. 17

Legal principles established

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  • Banks and their staff must maintain a high degree of integrity, prudence and financial probity, and staff whose conduct towards customer funds points to fraud risk termination
  • An announced, communicated performance bonus cannot be retrospectively withdrawn through disciplinary proceedings instituted after the fact
  • An employer's warrantless surveillance and private investigation of an employee's private life breaches the employee's constitutional right to privacy

Court orders

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  1. 1.A declaration that there was a violation of constitutional rights
  2. 2.General damages Ksh 5,000,000
  3. 3.Unpaid bonuses for the year 2022 Ksh 2,300,000
  4. 4.Notice pay Ksh 647,218
  5. 5.Unpaid salary increments at 13% from January 2023 to May 2023 Ksh 373,294
  6. 6.The claimant to complete clearance for issuance with a Certificate of Service
  7. 7.Each party bears its costs

Authorities

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Legislation

  • Employment Actsections 35, 41, 43, 44, 45, 51
  • Constitution of Kenyaarticles 31, 43
  • Employment and Labour Relations Court Actsection 12

Cases cited (11)

  • Willie Kipkpech Langat v County Public Service Board & 2 others
    [2022] eKLR
  • Josephine M. Ndungu & others v Plan International Inc.
    [2019] eKLR
  • Celina Nadite & 19 others v National Police Service Commission
    [2019] eKLR
  • Violet Kadala Shitsukane v Kenya Post Savings Bank
    [2020] eKLR
  • Agnes Murugi Mwangi vs. Barclays Bank of Kenya Limited
    (2013) eKLR
  • Evans Kamadi Misango v Barclays Bank of Kenya Limited
    (2015) eKLR
  • Naqvi Syed Omar v Paramount Bank Limited & Another
    [2015] eKLR
  • Jessicar Clarise Wanjiru v Davinci Aesthetics & Reconstruction Centre & 2 Others
    [2017] eKLR
  • Coalition for Reform and Democracy (CORD) & 2 others v the Republic of Kenya & 10 others
    [2015] eKLR
  • Daniel Musinga t/a Musinga & Co Advocates v Nation Newspapers Limited
    [2006] EKLR
  • DK Njagi Marete v Teachers Service Commission
    [2013] e-KLR
Jurisdiction invoked
Employment and Labour Relations Court Act, section 12 (employment and labour relations dispute; constitutional claims tied to employment)

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, "Mwangi v Absa Bank Kenya PLC (Cause E065 of 2023) [2024] KEELRC 2399 (KLR)", Case Analysis (2024). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2399/eng@2024-10-01

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