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ELRCAllowedCause No E462 of 2025· [2025] KEELRC 2304 (KLR)

Ngotho v Bank of Africa Kenya Limited (Cause E462 of 2025) [2025] KEELRC 2304 (KLR)

Employment and Labour Relations Court
31 July 2025
4,468 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~18 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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This is a ruling of the Employment and Labour Relations Court at Nairobi (Stella Rutto, J) on a Notice of Motion dated 22nd May 2025 in a Claim by a former bank employee challenging her summary dismissal of 11th February 2025 following a fraud investigation in the Portfolio Quality Management department. The application sought an interim order restraining the Respondent bank from varying or applying interest on the Claimant's Kshs 1,500,000 staff loan at a rate higher than the 5% staff rate, after the dismissal letter indicated the rate would rise to 22.59% commercial rates. The Respondent, through its Manager, Human Resources, Christopher Kuria, opposed the application, contending that the Facility was a separate, binding contract under which the 5% preferential rate applied only during employment, that the court cannot rewrite contracts, and that the Claimant had not met the Giella v Cassman Brown threshold. The Court framed a single issue: whether an injunctive order on the applicable loan interest rate should issue pending the hearing of the main suit. Applying Giella v Cassman Brown and Mrao v First American Bank, and following Chris Kisire Chepkoit v National Bank of Kenya and Beatrice Wangui Mwihia v Barclays Bank, the Court held that although the Facility was a separate contract, it was closely intertwined with the employment relationship. The Claimant established a prima facie case, irreparable injury (loss of income and a fourfold interest burden), and the balance of convenience favoured her; the Respondent retained security and could charge commercial rates retrospectively if the dismissal was upheld. The Motion was allowed: the Respondent was restrained from applying interest above the 5% staff rate pending determination of the Claim, with costs in the cause.

Key legal issues

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01

Whether the Claimant established a prima facie case with a probability of success

Holding

The Court was satisfied the Claimant proved a prima facie case, as she impugned both the substance and procedure of her dismissal, requiring interrogation of Sections 41, 43 and 45 of the Employment Act at the hearing of the main suit.

Reasoning

The Claimant denied complicity in or benefit from the fraud, contended the fraud predated her posting to the PQM department, and alleged she was given less than 48 hours to prepare for the disciplinary hearing and denied a witness and representative. These rival assertions require the Court at the main suit to apply Sections 41, 43 and 45 of the Employment Act. Applying Mrao v First American Bank, a genuine and arguable case showing an apparent infringement calling for rebuttal was established.

p. 8
02

Whether the Claimant would suffer irreparable injury not compensable by damages

Holding

Conversion of the loan to commercial rates (22.59%) would significantly impair the Claimant's ability to service the Facility, and the injury would be irreparable; the Respondent retains security and can charge commercial rates retrospectively if termination is upheld.

Reasoning

There is a stark contrast between the 5% staff rate and the 22.59% commercial rate. With her income lost upon termination, the Claimant would probably strain to service the facility at higher repayments, so damages would not suffice. The Respondent is protected because it holds security under Clauses 6.10 and 7.10 of the Offer Letter and can still charge commercial rates and recall the facility if termination is later found fair.

p. 8
03

Whether the balance of convenience favours the Claimant

Holding

The balance of convenience tilts in favour of the Claimant, supporting the grant of the injunction.

Reasoning

Having found a prima facie case and irreparable injury, and given that the Respondent holds security and can recover commercial rates retrospectively if the dismissal is upheld, preserving the status quo (5% staff rate) pending trial favours the Claimant without irreparably prejudicing the Respondent.

p. 8

Legal principles established

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  • Though a staff loan facility is a separate contract from the employment contract, the two are closely intertwined where the facility was extended within the employment relationship, so an interlocutory freeze on the interest rate is appropriate pending determination of the fairness of termination.
  • Until the legality of the termination is determined, an employee should not lose an employment benefit (staff interest rate) that flowed from the terminated employment alleged to be unfair.

Court orders

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  1. 1.The Respondent be and is hereby restrained from varying or applying interest at a rate higher than the 5% staff interest rate on the loan account and facility between the Claimant and the Respondent pending hearing and determination of the Claim herein
  2. 2.The costs of the Application shall be in the cause

Authorities

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Legislation

  • Employment ActSection 44(4)(c)
  • Employment ActSections 41, 43, 45 and 47
  • Employment Act, 2007Sections 41, 43, 45
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48

Cases cited (10)

  • Mark Theophil Odero Adoyo v DIB Bank Kenya Limited
    (2022) eKLR
  • Pius Kimaiyo Langat v Co-operative Bank of Kenya Limited
    [2017] eKLR
  • Michael Alwema Kilumbi v Barclays Bank of Kenya Limited
    [2018] eKLR
  • Lilian Rhoda Adhiambo v Barclays Bank of Kenya
    [2021] eKLR
  • Joseph Njagi Mwita & 4 others v Barclays Bank Limited
    [2019] eKLR
  • Kariuki v SBM Bank (Kenya) Limited
    (Cause E404 of 2023) [2023] KEELRC 2542 (KLR) (19 October 2023) (Ruling)
  • Giella v Cassman Brown & Co Ltd
    (1973) E A 358
  • Chris Kisire Chepkoit v National Bank of Kenya Limited
    [2017] eKLR
  • Beatrice Wangui Mwihia v Barclays Bank of Kenya
    [2019] eKLR
  • Mrao v First American Bank of Kenya Limited & 2 Others
    (2003) KLR 125
Jurisdiction invoked
Original employment and labour jurisdiction of the Employment and Labour Relations Court over a claim of unfair termination and an incidental interlocutory application

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, "Ngotho v Bank of Africa Kenya Limited (Cause E462 of 2025) [2025] KEELRC 2304 (KLR)", Case Analysis (2025). Cause No E462 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2304/eng@2025-07-31

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