Muli v ABSA Bank Kenya PLC (Cause 536 of 2019) [2025] KEELRC 1514 (KLR)
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
#Key legal issues
#Whether there was substantive justification for the summary dismissal
Yes - the reason was valid and fair on a balance of probabilities
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.
Whether the claimant was guilty of fraudulent transactions
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
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.
Whether the claimant was subjected to procedural fairness prior to dismissal
The procedure was flawed only to the extent that the investigation report requested by the claimant was not supplied
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.
Whether the claimant was entitled to the reliefs sought
Only notice pay of one month succeeded; all other reliefs were disallowed
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.
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.Judgment entered for the claimant against the respondent for Notice pay of Kshs. 206,382.00
- 2.Interest on the Notice pay at the court rate from the date of judgment
- 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.