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ELRCPartially AllowedNot stated in judgment· [2025] KEELRC 959 (KLR)

Muema v Kenya Post Office Savings Bank (Cause 1469 of 2018) [2025] KEELRC 959 (KLR)

Employment and Labour Relations Court
27 March 2025
1,341 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~5 min to read original · ~4 min brief

The bottom line

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A Kenyan bank fairly dismissed an employee over altered tender records, but won on substance only partially because it withheld key evidence from his defence.

What this practically means

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Executive summary

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Stephen Muema, a Supplies Officer who had served Kenya Post Office Savings Bank for about 25 years, was interdicted in September 2015 and dismissed in March 2016 over allegations that, while acting as chairman of a tender opening committee, he caused alterations to the Tender Opening Register affecting the award to Kenafric Diaries Ltd. He claimed unfair and unlawful termination and discrimination, seeking declarations, clearing and withdrawal of the termination letter, reinstatement, and costs. The court upheld the lawfulness of the interdiction and the show cause process, both grounded in the Respondent's Code of Conduct and sections 35(1) and 41 of the Employment Act. On substantive fairness, the court found the employer discharged its burden under sections 43 and 45: alterations and overwriting of prices were evident, committee members denied their signatures, and the Claimant, as custodian of the records, could not explain how the alterations occurred. However, the termination was procedurally unfair: the Respondent relied on forensic handwriting reports and audit investigation records without granting the Claimant access to them despite his request, denying him an adequate opportunity to defend himself. The discrimination claim failed as the Claimant did not show other committee members were similarly situated. Reinstatement was unavailable given the roughly ten years elapsed since separation. The court awarded compensation equivalent to 10 months' gross salary but denied costs because the Claimant filed submissions outside the agreed timelines without explanation.

Key legal issues

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01

Procedural fairness in termination

Holding

Termination was procedurally unfair because the Claimant was denied access to key records (including forensic handwriting reports) needed to prepare his defence

Reasoning

Sections 35(1) and 41 of the Employment Act require notice of allegations and an opportunity to make representations. The Claimant requested documents on 2 September 2015 but was told investigations were ongoing. The Respondent's own witnesses confirmed forensic handwriting reports and audit investigations informed the disciplinary hearing, yet the Claimant was never granted access, denying him a sufficient and adequate opportunity to respond.

p. 3
02

Substantive fairness of termination

Holding

The Respondent proved valid and fair reasons - alterations to the tender document while the Claimant was custodian of the records

Reasoning

Sections 43 and 45 of the Employment Act place the burden of proving validity and fairness of reasons on the employer. The evidence showed alterations and overwriting of prices in the Tender Opening Register, committee members denying their signatures, and the Claimant's handwriting matching the register. As custodian of the records he kept, the Claimant did not explain how alterations occurred, so the burden was discharged.

p. 3
03

Lawfulness of interdiction and show cause

Holding

Both were lawful; interdiction was contractually grounded under Part X of the Code of Conduct, and the show cause process met procedural fairness requirements

Reasoning

The Code of Conduct (Part X) permitted interdiction to enable investigations and a reason was given. Sections 35(1) and 41 of the Employment Act contemplate informing an employee of envisaged disciplinary action and allowing representations; the Respondent did so through several memos and an invitation to a hearing with the right to be accompanied by a colleague. No unlawfulness was found in either step.

p. 2
04

Discrimination

Holding

Not proved; allegations against the Claimant were specific to his role as custodian of the tender records

Reasoning

The Claimant asserted that other Tender Opening Committee members were not subjected to disciplinary process. However, the allegations against him were specific - that as custodian of the tender records he altered them - and he did not show that other members were or could have been involved in the alterations. Without evidence of comparable treatment or unequal treatment, the discrimination claim failed.

p. 4

Legal principles established

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  • An employer must grant an employee access to the records and evidence relied upon in disciplinary proceedings to afford a sufficient opportunity to respond
  • Where a custodian of records cannot explain alterations to those records, an employer may have valid and fair reasons to terminate employment

Court orders

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  1. 1.Compensation of 10 months' gross salary at the time of termination of employment
  2. 2.Each party to bear own costs in effect - costs denied to the Claimant for breach of timelines
Jurisdiction invoked
Employment and Labour Relations Court Act; Employment Act (first-instance employment cause)

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, "Muema v Kenya Post Office Savings Bank (Cause 1469 of 2018) [2025] KEELRC 959 (KLR)", Case Analysis (2025). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/959/eng@2025-03-27

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