King’oku v ABSA Bank Kenya PLC (Cause E647 of 2021) [2024] KEELRC 2529 (KLR)
The bottom line
#Kenya's Employment Court upheld a bank employee's dismissal, confirming employers win when disciplinary process is fair and reasons are proven by text message and documentary evidence.
What this practically means
#Executive summary
#Key legal issues
#Whether the termination was procedurally fair under section 41 and 45 of the Employment Act
The claimant was notified of the allegations, accorded a hearing and an appeal, and complied with sections 41 and 45; the refusal of cross-examination at appeal was proper since the appeal was not a re-hearing
The claimant received a show cause notice, was suspended on full pay with an express invitation to access documents and witnesses, attended a disciplinary hearing with a representative, was terminated, and appealed with a representative. The request to cross-examine witnesses at appeal was an afterthought since the appeal was a review based on material at the initial hearing. The termination letter issued promptly after the hearing, which did not amount to predetermination.
Whether valid reasons for termination existed under section 43
On a balance of probability the allegations of soliciting commissions from Winnie and receiving Kshs. 8,000 from Maina were established
Text messages showed a lunch promise tied to Winnie's commissions of about Kshs. 200,000, with Winnie indicating she would pay later. The claimant failed to produce MPESA evidence of contributions or the alleged mother-in-law's medical bills. Both allegations were therefore established on a balance of probability and the reasons for termination were valid and existed at the time of termination.
Whether discrimination was established
Not established for want of a comparator
The claimant alleged other Relationship Managers were given lesser punishment but provided no evidence of graduated findings. Designating Winnie as a whistle-blower was within the respondent's prerogative. No basis was shown for compensation for discrimination.
Whether preferential staff interest rates on loans should continue after termination
The claim is moot and unjustified since loan contracts provided that preferential rates revert to market rates upon separation
The claimant confirmed having repaid the outstanding loans, rendering the issue moot. He also signed loan contracts acknowledging that preferential rates would revert to market rates upon separation, so the claim was unjustified.
Legal principles established
#- An employer must be truthful in referral reports; a soft-landing agreement is required to defeat adverse referral in cases of termination that are not unfair
- An administrative appeal in employment disciplinary cases is a review, not a re-hearing; new evidence may only be introduced if it was not available or could not with due diligence be availed at the initial hearing
Court orders
#- 1.Judgment entered for the respondent against the claimant
- 2.Each party to bear own costs of the suit
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (first-instance employment claim)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "King’oku v ABSA Bank Kenya PLC (Cause E647 of 2021) [2024] KEELRC 2529 (KLR)", Case Analysis (2024). Not stated in the extract (Memorandum of Claim dated 06.08.2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2529/eng@2024-10-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.