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ELRCPartially AllowedNot stated in the judgment as supplied· [2024] KEELRC 2498 (KLR)

Bengi v Co-Operative Bank of Kenya Limited (Cause 1511 of 2015) [2024] KEELRC 2498 (KLR)

Employment and Labour Relations Court of Kenya
3 October 2024
6,883 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~28 min to read original · ~4 min brief

The bottom line

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A Kenyan bank's dismissal of an engineer was ruled unfair because it denied him access to the records he needed to defend himself.

What this practically means

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Executive summary

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In this ELRC cause at Mombasa, a former telecommunications engineer of a commercial bank claimed that his summary dismissal on 22 August 2014, for alleged negligent procurement practices causing the bank financial losses, was unfair and violated Sections 43, 45 and 49 of the Employment Act and Articles 35 and 47 of the Constitution. He sought declarations, reinstatement or compensation, damages and costs. The respondent justified the dismissal on audit findings of procurement irregularities, including installation of a redundant voice network, excess 42U cabinets, unsupervised Dimension Data work and misadvice on structured cabling and switches, asserting fair procedure and payment of terminal dues. The court (M. Mbarũ, J) held that although the employer had the prerogative to suspend and dismiss for gross misconduct under Section 44, that right is conditional on Section 41(2) due process. Because the claimant was suspended, barred from all bank premises and denied access to the internal records he repeatedly requested to answer the intricate, years-spanning allegations, the procedural test failed and the dismissal was unfair. The court awarded a declaration of unfair termination, 10 months' salary as compensation (Ksh.3,585,700) under Section 49, notice pay of Ksh.358,570 under Section 35, and costs. Reinstatement was refused as compensation addressed the violations, and severance pay does not apply to summary dismissal. Judgment delivered virtually at Mombasa on 3 October 2024.

Key legal issues

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01

Validity and fairness of reasons for summary dismissal (Sections 43 and 45, Employment Act)

Holding

The respondent failed the procedural test; the claimant's summary dismissal was unfair. Although investigations were conducted and notices to show cause issued, the claimant was denied access to the vital records needed to answer the intricate allegations

Reasoning

The court held that having genuine reasons is not enough - Section 45(2) requires proof of valid and fair reasons plus due process. The claimant, suspended and barred from all bank premises, could not access internal records stretching back to 2011 despite repeated requests. His long record of excellent appraisals and bonuses contradicted sudden negligence, and the respondent ignored weaknesses the claimant highlighted in his responses of 30 June and 5 August 2014.

p. 12
02

Denial of access to records during suspension as breach of fair procedure

Holding

The denial of access to records while suspended and barred from premises fatally flawed the disciplinary process

Reasoning

The court examined the correspondence and found no document allowing the claimant to return to the shop floor to access documents after suspension. Where an employer relies on audit findings of procurement irregularities spanning years, it cannot deny the accused employee the records needed to make representations, as this circumvents due process and breaches Sections 41, 43 and 45 and the employee's constitutional rights.

p. 10
03

Suspension as a preliminary administrative step

Holding

The employer may suspend an employee to allow investigations; the suspension itself was lawful

Reasoning

Relying on Inyani v Promasidor, Chrispus Ileli Kunuva and Elizabeth Cherono Kurgat, the court held that suspension is a preliminary decision based on a preliminary inquiry and an administrative action with stated reasons. The 29 May 2014 suspension to allow investigations was within the employer's prerogative; the unfairness lay in what followed - denial of document access and a flawed hearing.

p. 8
04

Remedies - compensation under Section 49, notice pay, reinstatement, severance

Holding

Ten months' salary compensation, notice pay and costs awarded; reinstatement and severance pay refused

Reasoning

Given 13 years of diligent service with a clean record, corroborated by the respondent's own witness, the court awarded 10 months' salary (Ksh.3,585,700) as compensation under Section 49. Notice pay of Ksh.358,570 followed from the absence of due process. Reinstatement was refused since compensation addressed the violations, and severance pay does not apply to summary dismissal.

p. 13

Legal principles established

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  • Summary dismissal under Section 44 of the Employment Act is conditional upon adherence to Section 41(2) - the employee must be issued notice, allowed to address the allegations and attend a hearing
  • Where an employer suspends an employee, bars them from premises and relies on audit findings against them, the employee acquires a concomitant right of access to the records necessary to respond to the allegations
  • Genuine belief in reasons for termination is not sufficient; the employer must also prove the reason was valid and fair and that a fair procedure was followed
  • A flawed due process denies the employee fairness and breaches Sections 41, 43 and 45 of the Employment Act
  • Without due process the employee is entitled to notice pay under Section 35 of the Employment Act

Court orders

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  1. 1.A declaration that the claimant's employment was unfairly terminated
  2. 2.Compensation of Ksh.3,585,700 (10 months' salary at Ksh.358,570)
  3. 3.Notice pay of Ksh.358,570
  4. 4.Costs of the suit to the claimant

Authorities

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Legislation

  • Employment ActSections 35, 41, 41(2), 43, 43(2), 44, 44(3), 44(4), 45, 45(2), 49
  • Constitution of KenyaArticles 35(1)(b), 47 (also referred to as Articles 35 and 46 in the determination)

Cases cited (12)

  • Cooperative Bank of Kenya Limited v Yator (Civil Appeal 87 of 2018) [2021] KECA
    [2021] KECA
  • Gas Kenya Limited v Odhiambo (Appeal E006 of 2022) [2022] KEELRC
    [2022] KEELRC
  • Inyani v Promasidor Kenya Limited (Employment and Labour Relations Cause E001 of 2021) [2023] KEELRC
    [2023] KEELRC
  • Chrispus Ileli Kunuva v County Government of Kitui & another [2020] eKLR
    [2020] eKLR
  • Elizabeth Cherono Kurgat versus Kenya Literature Bureau [2014] eKLR
    [2014] eKLR
  • Indogo v Ankole Grill Limited [2023] eKLR
    [2023] eKLR
  • Dennis Nyamweya Sibota v Deeway Security Limited [2022] eKLR
    [2022] eKLR
  • Janet Nyandiko v Kenya Commercial Bank Limited [2017] eKLR
    [2017] eKLR
  • Kenya Revenue Authority v Reuwel Waithaka Gitahi & 2 others [2019] eKLR, Civil Appeal No. 66A of 2017
    [2019] eKLR; Civil Appeal No. 66A of 2017
  • Jacob Oriando Ochanda v Kenya Hospital Association Ltd t/a Nairobi Hospital [2019] eKLR
    [2019] eKLR
  • Andrew K. Tanui v Postal Corporation of Kenya [2014] eKLR
    [2014] eKLR
  • CMC Aviation Limited v Mohammed Noor [2015] eKLR
    [2015] eKLR
Jurisdiction invoked
Original jurisdiction under the Employment Act and the Constitution (Articles 35(1)(b) and 47 invoked); the judgment does not cite a specific founding provision

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, "Bengi v Co-Operative Bank of Kenya Limited (Cause 1511 of 2015) [2024] KEELRC 2498 (KLR)", Case Analysis (2024). Not stated in the judgment as supplied. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2498/eng@2024-10-03

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