Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCDismissedNot stated in the judgment· [2025] KEELRC 756 (KLR)

Kisavi alias Douglas Mutinda Kisavi v Uchongaji Sacco Limited (Appeal E224 of 2024) [2025] KEELRC 756 (KLR)

Employment and Labour Relations Court
6 March 2025
2,576 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

#

Kenya's Employment Court confirmed an employer can deduct money an employee loses through negligence, plus unpaid Sacco loans, from terminal dues even after criminal charges are dropped.

What this practically means

#

Executive summary

#
This was a first appeal to the Employment and Labour Relations Court at Mombasa against the judgment in Mombasa CMELRC No.102 of 2020. The appellant, a long-serving employee of the respondent Sacco, challenged the trial court's decision allowing the respondent's counterclaim. The trial court had found unfair termination but awarded the appellant only notice pay, one month's compensation and leave pay, and allowed the counterclaim for Ksh.1,500,000 lost through his negligence in collecting money from the bank without a G4S security escort, plus unpaid development and stafi loans totalling Ksh.891,781.15. The appellant argued he filed a reply to the counterclaim, that the loss arose from third-party actions under a director's instructions, that loans were secured by deposits and guarantors, that the dismissed criminal charge showed no liability, and that the loans counterclaim belonged before the Cooperative Societies Tribunal. The respondent defended the counterclaim on jurisdiction and merits. On reanalysis of the record, the court held that the appellant's long service and handling of funds carried responsibility; his casual withdrawal of Ksh.1,500,000 without protocols was a serious breach, and the deduction of the loss from terminal dues was justified under Sections 17 and 19 of the Employment Act. The court found the ELRC had jurisdiction over the counterclaim, that loan securities did not excuse repayment, and that the dismissed criminal proceedings did not bar recovery. The appeal was dismissed with costs, with the respondent entitled to costs.

Key legal issues

#
01

Negligence in handling of funds justifying recovery of losses from an employee

Holding

The appellant, despite claiming ignorance of the risk management policy, was negligent in withdrawing Ksh.1,500,000 without security escort; his long service carried responsibility, and the deduction of the loss from his terminal dues was justified

Reasoning

The court held that positions involving handling of funds attract high responsibility and financial probity. The appellant's casual handling of Ksh.1,500,000 without protocols was a serious breach causing loss. Relying on Section 43 of the Employment Act and precedent on integrity in banking roles, the court found the trial court's findings on negligence and loss established on a balance of probabilities.

p. 5
02

Jurisdiction over the loans counterclaim versus the Cooperative Societies Tribunal

Holding

The ELRC had jurisdiction; employees who take Sacco loans through employment authorize deductions, and the employer may recover dues at the end of employment

Reasoning

The appellant argued loans fall under the Societies Act and belong before the Cooperative Tribunal. The court rejected this, holding that employees join Saccos by virtue of employment and authorize salary deductions; the employer is insulated from losing money lawfully due at the end of employment, guided by Section 19 of the Employment Act and the Javan Were Mbango case.

p. 5
03

Effect of loan security deposits and guarantors

Holding

The security did not absolve the appellant of the primary duty to repay; the employer could counterclaim the full outstanding loans

Reasoning

The appellant contended deposits of Ksh.97,000, salary and guarantors' shares of Ksh.80,000-92,000, and his Ksh.600,000 provident fund should have been applied to offset the loans. The court held repayment was the appellant's duty; the securities would only be released upon repayment at the end of employment.

p. 5
04

Failure to file a response to the counterclaim

Holding

The court did not disturb the trial court's finding; even if the response existed, the appellant was liable and the counterclaim would still succeed

Reasoning

The first ground of appeal attacked the magistrate's finding that no response to the counterclaim was filed. The court treated the evidence as considered as a whole and found negligence established regardless; the loss deduction was justified 'present or not' of the counterclaim response.

p. 5

Legal principles established

#
  • Where an employee in a position of trust fails to undertake duties involving funds properly, trust is lost and the employer may lawfully terminate under Section 43 of the Employment Act
  • Under Sections 17 and 19 of the Employment Act, an employer may deduct monies lost through employee negligence and unpaid loans before paying terminal dues
  • Criminal proceedings dismissed for lack of evidence do not bar an employer from recovering losses from an employee based on the employment relationship
  • The ELRC has jurisdiction to determine counterclaims for dues owed to an employer arising out of the employment relationship, including Sacco loans
  • Loan security deposits and guarantors do not insulate an employee from the duty to repay loans at the end of employment

Court orders

#
  1. 1.The appeal is without merit and is dismissed with costs
  2. 2.The respondent is entitled to costs of the appeal

Authorities

#

Legislation

  • Employment ActSection 43
  • Employment ActSection 19
  • Employment ActSection 17
  • Employment and Labour Relations Court ActSection 12
  • Civil Procedure ActSection 16
  • Cooperative Societies ActSection 76
  • Societies Act

Cases cited (8)

  • Alexina Kerubo Misaro v Postal Corporation of Kenya
    [2019] eKLR
  • Peter Macharia Gakure & another v AMica Savings and Credit Limited
    [2019] eKLR
  • Abeid Mwamburi v Sokoro Savings & Credit Co-operative Society Limited
    [2021] eKLR
  • Philip Muiruri Ndaruga v Gatemu Housing Company Ltd
    [2019] eKLR
  • Galgalo Jarso Jillo v Agricultural Finance Corporation
    [2021] KEELRC 323 (KLR)
  • Gatundu v First Assurance Company Limited
    [2024] KEELRC 2518 (KLR)
  • Violet Kadala Shitsukane v Kenya Post Savings Bank
    [2020] eKLR
  • Javan Were Mbango v H. Young & Co. (EA) Ltd
    [2012] eKLR
On appeal from
Mombasa CMELRC (Employment and Labour Relations Court, subordinate bench)
Mombasa CMELRC No.102 of 2020
Jurisdiction invoked
Section 12 of the Employment and Labour Relations Court Act; first-appeal jurisdiction over the subordinate court's decision

Key timeline

#

Practical implications

#

Frequently asked questions

#

Later judgments citing this (1)

#

Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

#

Cite this brief

Caselaw, "Kisavi alias Douglas Mutinda Kisavi v Uchongaji Sacco Limited (Appeal E224 of 2024) [2025] KEELRC 756 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/756/eng@2025-03-06

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