Nyabera v Kenya Post Savings Bank (Employment and Labour Relations Appeal E009 of 2024) [2024] KEELRC 2594 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the appellant's termination was based on valid reasons and was lawful despite absence of a written policy on password secrecy
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.
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.
Whether failure to call Mercy Kasili as a witness at the disciplinary hearing vitiated procedural fairness under section 41 of the Employment Act
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.
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.
Legal principles established
#- 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
#- 1.The appeal is dismissed with costs to the Respondent
- 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
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.