Kingdom Bank Limited v Kirui (Appeal E003 of 2023) [2025] KEELRC 1201 (KLR)
The bottom line
#A Kenyan bank lost its appeal because it showed the court paperwork about its dismissal process, but no actual evidence that the employee did anything wrong.
What this practically means
#Executive summary
#Key legal issues
#Substantiation of valid reason for termination
The Trial Court correctly found that valid reason was not established in the absence of minutes of the disciplinary hearing showing the evidence availed.
The seven documents exhibited by the Appellant related mainly to procedural requirements - employment letter, suspension, investigations, show-cause, responses, hearing invitation and termination letter. None substantiated the alleged offences. Without minutes showing charges, witnesses, evidence and the decision, the Trial Court could not be faulted in finding the allegations unsubstantiated.
Procedural fairness versus substantiation
Procedural compliance, including a right of appeal, does not establish valid reason for termination.
The Trial Court found the Appellant made effort to comply procedurally with the Employment Act; termination was procedurally fair but substantively unfair. The right of appeal only confirms procedural rights and cannot cure the absence of evidence substantiating the allegations.
Burden of proving gross misconduct under Section 44(4)(c) of the Employment Act
The employer must establish the employment offence; the court will not accept bare pleadings and submissions.
It was for the Appellant to establish that the Respondent committed an employment offence under Section 44(4)(c). The Appellant did not do so, and the Trial Court was not bound to accept the assertion of negligence and gross misconduct on bare pleading and submission.
The Counterclaim
The Trial Court properly addressed the Counterclaim; the Appellant sold the Respondent's car without accounting for the proceeds, and costs properly went to the successful litigant.
The Appellant repossessed and sold the Respondent's car, subject of the Counterclaim, without exhibiting statements of account showing what was recovered and what was outstanding. The Trial Court's award of costs to a successful litigant disclosed no error.
Legal principles established
#- Substantiation of termination, especially where an employer alleges participation in banking fraud, requires that evidence of wrongdoing be availed at the disciplinary hearing.
- Grant of a right of appeal after dismissal goes only to procedural fairness, not to substantiation of valid reasons for termination.
- It is for the employer, through evidence, to establish wilful neglect and improper performance of duty; bare pleading and submission do not discharge that burden.
Court orders
#- 1.The Appeal lacks merit and is declined.
- 2.No order on the costs.
- On appeal from
- Trial Court (ELRC, first instance)
- Not stated
- Jurisdiction invoked
- Appellate jurisdiction of the Employment and Labour Relations Court over an appeal from the Trial Court (specific provision not stated in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kingdom Bank Limited v Kirui (Appeal E003 of 2023) [2025] KEELRC 1201 (KLR)", Case Analysis (2025). Not stated in the excerpt. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1201/eng@2025-04-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.