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ELRCDismissedStatement of Claim dated 17th February 2021· [2025] KEELRC 1746 (KLR)

Obasie v National Industrial Training Authority (NITA) (Cause E131 of 2021) [2025] KEELRC 1746 (KLR)

Employment and Labour Relations Court
13 June 2025
4,296 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~17 min to read original · ~4 min brief

The bottom line

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A Kenyan court dismissed a manager's unfair termination suit, holding that failing to detect fraud through negligence is a valid reason for dismissal even without criminal guilt.

What this practically means

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Executive summary

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The Claimant, employed on 8th January 2015 as a Senior Accountant and later acting Manager Finance and Levy Administration, was sent on compulsory leave in March 2017 following the fraudulent clearance at Diamond Trust Bank, Kisii branch of cheques totalling about Kshs 12,003,863 belonging to the Respondent. Following BFIU investigations which recommended action against him for negligence, he was issued a Notice to Show Cause on 31st August 2017, appeared before a Board disciplinary committee in October 2017, and was summarily dismissed on 19th February 2018 on grounds of gross negligence. His internal appeal and further appeal to the Public Service Commission failed. He sued for reinstatement or, alternatively, damages for wrongful termination. The Respondent maintained the dismissal was fair and lawful. The court framed three issues: valid and fair reason, procedural fairness, and entitlement to reliefs. It held that as the officer in charge of the Finance department, the Claimant bore responsibility for supervision and timely bank reconciliations; his admission that reconciliations were three months behind contributed to the fraud going undetected. His claim to be the whistleblower was contradicted by the record. Although not criminally culpable, he was negligent given his level of responsibility. Procedurally, the show cause, response and oral hearing satisfied Section 41 of the Employment Act, and the alleged 21-day notice requirement failed for want of proof of the HR Manual. The suit was dismissed in its entirety with no orders as to costs.

Key legal issues

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01

Valid and fair reason for termination

Holding

The Respondent proved on a balance of probabilities that the Claimant, as acting Manager Finance, was negligent in failing to ensure timely bank reconciliations and supervision, giving a valid and fair reason under Sections 43 and 45(2)(a) & (b).

Reasoning

The Claimant was the officer in charge of the Finance department, supervising Jamal Ochieng, who was linked to the fraud. He admitted reconciliations were three months behind, and the fraud went undetected for three months partly because of the failure to reconcile. The BFIU recommended action against him for negligence. His defence of staff shortage was unconvincing as he never raised it previously; nor was he the whistleblower, having been alerted by the Revenue Accountant.

p. 8
02

Procedural fairness

Holding

The procedure met the minimum requirements of Section 41 of the Employment Act: notice to show cause, response, and an oral disciplinary hearing.

Reasoning

The Claimant was sent on compulsory leave, issued a Notice to Show Cause dated 31st August 2017, responded on 4th September 2017, and was invited to an oral hearing before a disciplinary panel. His claim that he was given only three days contrary to a 21-day HR Manual provision failed because the Manual was not exhibited in Court. His appeal and further appeal to the Public Service Commission were dismissed.

p. 8
03

Entitlement to reliefs

Holding

Having found the termination fair and lawful, the reliefs of reinstatement and damages were unavailable.

Reasoning

The Court found the termination neither unfair nor unlawful, so the Claimant failed to prove his case on a balance of probabilities and no relief could issue.

p. 9

Legal principles established

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  • Under Section 43(2) of the Employment Act, the reasons for termination are those the employer genuinely believed to exist at the time, proved on a balance of probabilities.
  • Criminal exoneration does not absolve an employee of disciplinary liability for negligence in performance of duties.
  • An employer must prove both valid reason and procedural fairness under Sections 41 and 45 of the Employment Act.

Court orders

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  1. 1.The Claimant's suit is dismissed in its entirety with no orders as to costs

Authorities

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Legislation

  • Employment ActSection 43(2)
  • Employment ActSections 43 and 45(2)(a) & (b)
  • Employment ActSection 45(2)(c)
  • Employment ActSection 41(1)
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B
  • Respondent's Human Resource Policy and Procedures ManualSection 10.32

Cases cited (4)

  • Engoke v Maridadi Flowers Limited
    [2024] KEELRC 13603 (KLR)
  • Otieno v General Industries Limited
    [2024] KEELRC 2040 (KLR)
  • Kimbio & Another v Nyaribo t/a I.N. Nyaribo & Company Advocates
    [2024] KEHC 6120 (KLR)
  • The Board of Trustees Marie Stopes Clinics Kenya v FR N
    Civil Appeal No. 387 of 2013
Jurisdiction invoked
First-instance employment claim under the Employment Act before the Employment and Labour Relations Court

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, "Obasie v National Industrial Training Authority (NITA) (Cause E131 of 2021) [2025] KEELRC 1746 (KLR)", Case Analysis (2025). Statement of Claim dated 17th February 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1746/eng@2025-06-13

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