Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCPartially AllowedNot stated in the judgment as provided· [2024] KEELRC 2418 (KLR)

Kinyanjui v Equity Bank Limited (Employment and Labour Relations Cause 1411 of 2018) [2024] KEELRC 2418 (KLR)

Employment and Labour Relations Court
2 October 2024
6,558 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~26 min to read original · ~4 min brief

The bottom line

#

A Kenyan bank legally dismissed a bad-debts-listed employee, but lost on procedure because its own disciplinary panel lacked the required quorum.

What this practically means

#

Executive summary

#
The Claimant, employed by the Respondent bank from October 2012 (initially 2005-2008), was summarily dismissed on 2nd May 2018 on grounds that he was listed with the Credit Reference Bureau for non-performing loans and failed to provide a realistic settlement plan. He sued for a finding of wrongful termination, terminal dues including twelve months' compensation, notice pay, leave allowance, severance pay, and retention of a preferential 8% interest rate on his staff loans. The Respondent defended the dismissal as substantively and procedurally fair under Sections 41 and 45 of the Employment Act. The court framed two issues: whether the dismissal was unfair, and whether the reliefs were payable. On procedure, although show cause, hearing and consideration requirements of Section 41 were met, the disciplinary panel comprised only three members contrary to the quorum of four in the Respondent's own Disciplinary Handling Procedure; the proceedings and recommendation were declared a nullity, rendering the dismissal procedurally unfair. On substance, the court held that pecuniary embarrassment, though arising from third-party loans, bore a nexus to the banking business, and any reasonable employer could dismiss; the dismissal was substantively fair. Remedies followed the split finding: one month's notice pay, compensation for 16.5 unutilized leave days, and only two months' salary as compensation under Section 49(1)(c), reflecting the Claimant's contribution. Severance pay was refused as redundancy-specific. Judgment was entered for the Claimant with a certificate of service, interest, the preferential 8% rate order, and costs to the Claimant. Delivered by Ocharo Kebira, Judge, on 2nd October 2024.

Key legal issues

#
01

Procedural fairness of the summary dismissal

Holding

The dismissal was procedurally unfair because the disciplinary panel had only three members contrary to the quorum of four in the Respondent's own Disciplinary Handling Procedure, rendering the proceedings a nullity.

Reasoning

Section 41 requires notice, hearing and consideration of representations, which were substantially met. However, workplace policies bind the employer equally. Clause 2.0(g) of the Disciplinary Handling Procedure fixed a quorum of four members inclusive of the HR representative; only three sat. The Respondent neither adduced evidence nor submitted on this breach, and it was no minor misstep.

p. 9
02

Substantive justification for the dismissal

Holding

The dismissal was substantively fair: the Claimant's CRB listing for five non-performing loans constituted pecuniary embarrassment, a major offence with a nexus to the banking business, justifying dismissal by any reasonable employer.

Reasoning

Pecuniary embarrassment was a major offence under clause 15.0 of the applicable Disciplinary Handling Procedure. Although the offending loans were with third parties, off-duty conduct is actionable where it affects the employer's interests; a bank's customers must be served by staff free of impecuniosity. The infraction persisted over six years.

p. 12
03

Reliefs: notice pay, leave allowance, severance and compensation

Holding

One month's notice pay and 16.5 days' leave allowance were granted; severance pay was refused as redundancy-specific; compensation was fixed at two months' gross salary.

Reasoning

Refusing notice pay after finding procedural unfairness would reward the Respondent's unlawful acts. The leave claim was uncontroverted and the Respondent, as record-keeper under Section 74, could easily have disproved it. Severance pay under Section 40(1)(g) applies to redundancy only. Compensation under Section 49(1)(c) was exercised discretionarily at two months' salary.

p. 12
04

Preferential 8% interest rate on loans

Holding

The court ordered that the Claimant clear outstanding loan arrears at the preferential rate of 8% per annum.

Reasoning

The Claimant sought retention of the preferential rate, arguing the Respondent intended to vary it to market rates and repossess his security. Despite the Respondent's reliance on contractual clauses allowing variation upon exit, the final orders granted this prayer in the Claimant's favour.

p. 13

Legal principles established

#
  • Human resource policies, procedures and practices at the workplace bind the employer as much as the employee; an employer cannot pick and choose which policy to follow.
  • Non-compliance with a mandatory quorum under the employer's own disciplinary procedure renders the disciplinary proceedings and their recommendations a nullity.
  • An employer may discipline an employee for off-duty conduct where that conduct bears on the employment relationship and affects the employer's interests.
  • In the banking industry, an employee's financial embarrassment has a nexus with the employer's business such that a reasonable employer could dismiss on that ground.

Court orders

#
  1. 1.A declaration that the summary dismissal of the Claimant from employment was procedurally unfair.
  2. 2.One month's salary in lieu of notice, Kshs. 315,000/-
  3. 3.Compensation for earned but unutilized 16.5 leave days, Kshs. 173,250/-
  4. 4.Compensation for unfair dismissal of two months' gross salary, Kshs. 630,000/-
  5. 5.An order for the Claimant to clear outstanding loan arrears at the preferential rate of 8% per annum.
  6. 6.The Claimant be issued with a Certificate of Service within 30 days of the Judgment.
  7. 7.Interest on the monetary awards at Court rates from the date of judgment until payment in full.
  8. 8.The Respondent shall bear the costs of this suit.

Authorities

#

Legislation

  • Employment Act 2007Section 10(6)
  • Employment Act 2007Section 35
  • Employment Act 2007Section 40(1)(g)
  • Employment Act 2007Section 41
  • Employment Act 2007Section 44(1)-(4)
  • Employment Act 2007Section 45(1) and (2)
  • Employment Act 2007Section 49(1)(c)
  • Employment Act 2007Section 74
  • Constitution of Kenya 2010Article 47 (right to fair administrative action)
  • Constitution of Kenya 2010Article 50 (right to fair hearing)
  • Fair Administrative Actions ActGeneral stipulations

Cases cited (7)

  • CMC Aviation Limited vs Mohammed Noor
    [2015] eKLR
  • Joshua Rodney Marimba vs Kenya Revenue Authority
    [2019] eKLR
  • Republic vs Kenya School of Law ex parte Thomas Otieno Oriwa
    [2015] eKLR
  • Tyson Sangura Wanyama vs Pwani University
    [2018] eKLR
  • British Leyland UK Ltd vs Swift
    (1981) I.R.L.R 91
  • National Bank of Kenya Ltd vs Pipe Plastic Samkolit (K) Ltd & Another
    [2011] eKLR
  • Bigger v City of Johannesburg [Emergency services]
    [JS 232/09][2011] ZALCHB5; [2011] 6 BLLR 577 [LC] 32 ILJ 1665
Jurisdiction invoked
Employment Act 2007, Sections 41, 43, 44, 45 and 49; original employment and labour relations jurisdiction

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Kinyanjui v Equity Bank Limited (Employment and Labour Relations Cause 1411 of 2018) [2024] KEELRC 2418 (KLR)", Case Analysis (2024). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2418/eng@2024-10-02

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