Bengi v Co-Operative Bank of Kenya Limited (Cause 1511 of 2015) [2024] KEELRC 2498 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Validity and fairness of reasons for summary dismissal (Sections 43 and 45, Employment Act)
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
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.
Denial of access to records during suspension as breach of fair procedure
The denial of access to records while suspended and barred from premises fatally flawed the disciplinary process
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.
Suspension as a preliminary administrative step
The employer may suspend an employee to allow investigations; the suspension itself was lawful
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.
Remedies - compensation under Section 49, notice pay, reinstatement, severance
Ten months' salary compensation, notice pay and costs awarded; reinstatement and severance pay refused
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.
Legal principles established
#- 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
#- 1.A declaration that the claimant's employment was unfairly terminated
- 2.Compensation of Ksh.3,585,700 (10 months' salary at Ksh.358,570)
- 3.Notice pay of Ksh.358,570
- 4.Costs of the suit to the claimant
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.