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ELRCDismissedKakamega ELRC Appeal (Memorandum of Appeal dated 11th April 2024, arising from Kakamega CMC ELRC No. E198 of 2019)· [2024] KEELRC 2594 (KLR)

Nyabera v Kenya Post Savings Bank (Employment and Labour Relations Appeal E009 of 2024) [2024] KEELRC 2594 (KLR)

Employment and Labour Relations Court
24 October 2024
3,522 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan bank cashier who shared his work password lost his unfair dismissal case, because sharing passwords is inherently against banking practice.

What this practically means

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Executive summary

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This is a first appeal to the Employment and Labour Relations Court by Fred Nyabera against the judgment of Hon. A. Odawo (PM) of 13th March 2024 in Kakamega CMC ELRC No. E198 of 2019, which dismissed his claim for unlawful and unfair termination by Kenya Post Saving Bank. The appellant, a cashier, was dismissed after money was lost through transactions effected using his password, which he admitted giving to Mercy Kasili. The appeal was canvassed by written submissions. Framing two issues, the court, guided by Selle v Associated Motor Boat Co., re-evaluated the evidence. On the first issue, it held that a password is by definition a secret, that password secrecy is an operational requirement in banking arising from industry practice even absent a written policy, and that sharing the password was negligence amounting to gross misconduct justifying dismissal under the reasonable-employer test, following Nelson Ken Kipkemei v Diamond Trust Bank. On the second issue, the court held that the employer satisfied section 41 of the Employment Act by informing the appellant of his right to be accompanied by a colleague of his choice at the disciplinary hearing, and the onus of securing the colleague's attendance lay on the appellant; failure to call Mercy Kasili did not taint procedural fairness. The appeal was dismissed with costs to the respondent and the lower court's judgment and decree were upheld. Jemimah Keli, J, delivered the judgment in open court at Nairobi on 24th October 2024.

Key legal issues

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01

Whether the appellant's termination was based on valid reasons and was lawful despite absence of a written policy on password secrecy

Holding

Termination was lawful; sharing a password was negligence amounting to gross misconduct and password secrecy is an operational requirement in banking by industry practice, even without a written policy.

Reasoning

The appellant, a cashier, admitted giving his password to Mercy Kasili, and money was lost on the day his credentials were used. A password is by definition a secret word or string of characters granting access to a system. It was a reasonable expectation that bank passwords be kept secret, otherwise anyone could access the bank system. Applying the reasonable-employer test and following Nelson Ken Kipkemei v Diamond Trust Bank, the trial court's finding of gross misconduct was sound.

p. 6
02

Whether failure to call Mercy Kasili as a witness at the disciplinary hearing vitiated procedural fairness under section 41 of the Employment Act

Holding

Procedural fairness was met; the employer's obligation was discharged by informing the appellant of his right to be accompanied by a colleague of his choice, and it was the appellant's duty to secure attendance.

Reasoning

Section 41 entitles an employee facing termination on grounds of misconduct to have another employee or shop floor union representative of his choice present. The invitation letters of 25th June 2015 and 12th August 2015 expressly informed the appellant he could be accompanied by a colleague of his choice. Having been afforded that right, the onus lay on the appellant to call Mercy Kasili or any other employee; the employer's failure to produce her did not taint the process.

p. 7

Legal principles established

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  • There need not be a written policy against sharing of passwords for password secrecy to be an operational requirement of employment in the banking industry; it arises by the practice of the banking industry.
  • An employer discharges its procedural fairness obligation under section 41 of the Employment Act by affording the employee the opportunity to be accompanied by another employee or shop floor union representative of his choice; it is then the employee's obligation to secure that person's attendance.
  • A court sitting at first appeal must re-evaluate the facts and evidence before the trial court while making allowance for not having seen the witnesses.

Court orders

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  1. 1.The appeal is dismissed with costs to the Respondent
  2. 2.The Judgment and Decree of Hon. A. Odawo (PM), Kakamega, delivered on 13th March 2024 in Kakamega CMC ELRC No. E198 of 2019 is upheld

Authorities

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Legislation

  • Constitution of Kenya 2010Articles 40, 47, 50
  • Employment Act 2007Sections 41(1), 41(2), 42(1), 44(3), 44(4), 45(2)

Cases cited (7)

  • Selle & Another v Associated Motor Boat Co. Ltd & Others
    (1948) EA 123
  • Violet Kadala Shitsukane v Kenya Post Savings Bank
    (2020) eKLR
  • Nelson Ken Kipkemei v Diamond Trust Bank Kenya Limited
    (2015) eKLR
  • Pius Machafu Isindu v Lavington Security Guards Limited
    (2017) eKLR
  • Britain Leyland UK Ltd v Swift
    [1981] IRLR 91
  • Peter Njuguna Chege v Tim sales Limited
    (2020) eKLR
  • Kinoti v Safaricom PLC
    (2023) eKLR
On appeal from
Chief Magistrate's Court at Kakamega (ELRC)
Kakamega CMC ELRC No. E198 of 2019
Jurisdiction invoked
First appellate jurisdiction over the subordinate court's judgment (appeal from Kakamega CMC ELRC No. E198 of 2019)

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, "Nyabera v Kenya Post Savings Bank (Employment and Labour Relations Appeal E009 of 2024) [2024] KEELRC 2594 (KLR)", Case Analysis (2024). Kakamega ELRC Appeal (Memorandum of Appeal dated 11th April 2024, arising from Kakamega CMC ELRC No. E198 of 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2594/eng@2024-10-24

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