Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCPartially AllowedMemorandum of Claim dated 13th August 2019, amended 17th May 2022 (cause number not stated in judgment)· [2025] KEELRC 1514 (KLR)

Muli v ABSA Bank Kenya PLC (Cause 536 of 2019) [2025] KEELRC 1514 (KLR)

Employment and Labour Relations Court
23 May 2025
10,207 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~41 min to read original · ~4 min brief

The bottom line

#

A Kenyan bank lawfully dismissed an employee over fraud concerns despite his criminal acquittal, but owed him notice pay for skipping one procedural step.

What this practically means

#

Executive summary

#
The claimant, formerly in charge of the respondent bank's Diani Branch, was summarily dismissed by letter dated 23rd August 2016 after fraudulent withdrawals of Kshs. 860,000 and Kshs. 920,000 were made from a customer's account. The termination letter cited breach of his terms and conditions of employment, the bank's Information Risk Management policies and the bank's value of integrity. He had been criminally charged with conspiracy to defraud in Milimani Criminal Case No. 1178 of 2016 and acquitted. The court, agreed by the parties, framed four issues: substantive justification, whether the claimant was guilty of fraudulent transactions, procedural fairness, and reliefs. On the evidence, the court found that although the criminal acquittal turned on the criminal standard of proof, the employer only needed to prove on a balance of probabilities the reasons it genuinely believed to exist. The claimant admitted recording the customer's details in a personal diary in her absence, details later used in the fraud, and the investigation report showed unexplained views of the customer's account. The reason for termination was therefore held valid on a balance of probabilities, and the criminal acquittal did not affect the validity of the termination. Procedurally, section 41 of the Employment Act was satisfied save that the respondent failed to supply the investigation report the claimant had requested, making the procedure flawed to that extent only. Reinstatement, maximum compensation, exemplary damages, damages for discrimination and harassment, disturbance allowance (time-barred as a continuing injury), and untaken leave and unpaid August 2016 salary claims (terminal dues offset against loans) were all disallowed. Judgment was entered for the claimant for notice pay of Kshs. 206,382.00 with interest at court rate from the date of judgment, plus costs.

Key legal issues

#
01

Whether there was substantive justification for the summary dismissal

Holding

Yes - the reason was valid and fair on a balance of probabilities

Reasoning

The claimant admitted recording customer details in a personal diary in the customer's absence, and the details were later used to defraud the customer. The investigation report showed he viewed the account for balance, 360 overview, customer information and mobile banking views. The employer's standard of proof is a balance of probability, being a partly subjective test; the DCI's inability to decrypt WhatsApp messages and the criminal acquittal did not defeat the employer's genuine belief in the reason.

p. 9
02

Whether the claimant was guilty of fraudulent transactions

Holding

The termination letter did not accuse him of performing the fraud, only of acting contrary to his terms, IRM policies and the bank's value of integrity

Reasoning

The court found it was a fact that fraudulent transactions were performed on the customer account, but the termination letter did not state that the claimant performed the fraud act. The respondent's evidence of the claimant viewing the customer's balance and information and taking the details down in a personal diary in the customer's absence was uncontroverted, and the court upheld its finding that the reason for termination was valid.

p. 11
03

Whether the claimant was subjected to procedural fairness prior to dismissal

Holding

The procedure was flawed only to the extent that the investigation report requested by the claimant was not supplied

Reasoning

The claimant was informed of the reasons the employer was contemplating termination in communications before and including the disciplinary hearing invitation, satisfying section 41 of the Employment Act. No notice to show cause in any particular format is required. However, the respondent claimed it issued the requested documents but there was no evidence of that, so the procedure was flawed to that extent.

p. 13
04

Whether the claimant was entitled to the reliefs sought

Holding

Only notice pay of one month succeeded; all other reliefs were disallowed

Reasoning

Since the reason for termination was justified, reinstatement, maximum compensation, exemplary damages, discrimination damages, disturbance allowance (time barred as a continuing injury) and leave/unpaid salary claims (terminal dues offset against loans) all failed. Notice pay of one month under section 35 of the Employment Act was awarded as the procedure was flawed.

p. 17

Legal principles established

#
  • A criminal acquittal on a charge beyond reasonable doubt does not invalidate an employment termination proved on a balance of probabilities
  • The employer need only prove reasons it genuinely believed to exist, on a balance of probability, a partly subjective test
  • The court has no supervisory role over an employer's decision where there is a valid reason and due process has been followed
  • Section 41 of the Employment Act does not prescribe a particular format for a notice to show cause; the employer must explain the reasons in a language the employee understands
  • Failure to supply an investigation report relied on by the disciplinary committee, on the employee's written request, renders the procedure flawed

Court orders

#
  1. 1.Judgment entered for the claimant against the respondent for Notice pay of Kshs. 206,382.00
  2. 2.Interest on the Notice pay at the court rate from the date of judgment
  3. 3.Costs of the suit to the claimant
Jurisdiction invoked
Employment and Labour Relations Act, section 12 (court's jurisdiction including costs under section 12(4)); claim for unfair termination and wrongful dismissal under the Employment Act, 2007

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Muli v ABSA Bank Kenya PLC (Cause 536 of 2019) [2025] KEELRC 1514 (KLR)", Case Analysis (2025). Memorandum of Claim dated 13th August 2019, amended 17th May 2022 (cause number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1514/eng@2025-05-23

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