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IndustrialPartially AllowedNot stated in judgment· [2014] KEIC 135 (KLR)

Miringu v Barclays Bank of Kenya Limited (Cause 29(N) of 2010) [2014] KEIC 135 (KLR)

Industrial Court of Kenya
10 January 2014
NMNzioki Wa Makau
1,058 words in judgment
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The bottom line

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Kenya's Industrial Court ruled Barclays unfairly fired an employee for a theft she didn't commit, awarding her 12 months' pay, leave dues, and costs.

What this practically means

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Executive summary

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The Claimant, a former employee of Barclays Bank assigned to the JKIA Branch, sued for special damages of Kshs. 2,070,722/-, general damages, an order unfreezing her account at the Enterprise Road Branch, and costs, following termination of her employment on 23rd November 2009 after a theft of cash amounting to Kshs. 33,482,521.22 from the Branch. Investigations established the theft to have been an inside job committed when the Claimant was off duty; some colleagues were arraigned in court. The Bank alleged procedural lapses by the Claimant, including failure to conduct weekly till snaps, failure to secure duplicate keys and failure to complete an operational risk assessment before raising the cash holding limit. The court, having considered the pleadings, evidence, the detailed investigation report and the disciplinary proceedings, found that although lapses existed at the Branch, the Claimant had not participated in the theft and the alarms had deliberately been left unarmed; lesser disciplinary sanctions such as demotion or withholding of increment would have sufficed, so the dismissal was unfair. The court distinguished all the authorities cited by the parties as not being on all fours. Relying on Section 28 of the Employment Act, it held the Claimant entitled to pro rata leave for 2009, and invoking Section 12 of the Industrial Court Act awarded one month's notice pay, pension dues, unpaid salary to 23rd November 2009, and 12 months' compensation of Kshs. 1,350,384/-, with costs, and ordered the lifting of the freeze on her account while affirming her obligation to make good her debts to the Bank.

Key legal issues

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01

Fairness of the termination for loss occurring when the Claimant was off duty

Holding

The termination was unfair because the theft was an inside job committed when the Claimant was not on duty, and lesser disciplinary sanctions would have sufficed.

Reasoning

The court considered the investigation report, which attributed the loss to an inside job; the theft occurred while the Claimant was off shift and colleagues were arraigned for the theft. Alarms had not been armed, suggesting deliberate facilitation. The court found procedural lapses at the branch but concluded the Claimant bore no personal blame, making dismissal disproportionate to any lapse in handling the branch.

p. 2
02

Entitlement to pro rata leave for an incomplete year

Holding

The Claimant was entitled to a minimum of 21 working days' pro rata leave for 2009 notwithstanding the year had not ended.

Reasoning

Section 28 of the Employment Act entitles an employee to leave as a right. Since only one month of 2009 remained at termination, the Claimant was entitled to pro rata leave calculated at a minimum of 21 working days, quantified at Kshs. 112,532/-.

p. 2
03

Court's power to grant appropriate relief including unfreezing the account

Holding

Under Section 12 of the Industrial Court Act, the court is empowered to grant any appropriate relief, including ordering the lifting of the freeze on the Claimant's account.

Reasoning

The court invoked its statutory remedial mandate under Section 12 of the Industrial Court Act to order payment of the enumerated dues and the lifting of the freeze on the Claimant's account at the Enterprise Road Branch, while noting she remains obligated to make good her debts and liabilities to the Respondent.

p. 3

Legal principles established

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  • Leave is a right of every employee and is earned pro rata even in an incomplete year of service.
  • An employee not personally involved in a theft should not be dismissed; lesser disciplinary sanctions are appropriate.

Court orders

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  1. 1.Leave for 2009 - Kshs. 112,532/-
  2. 2.One month notice - Kshs. 112,532/-
  3. 3.Pension dues
  4. 4.Unpaid salary for days worked up to 23rd November 2009
  5. 5.12 months compensation for the unfair termination - Kshs. 1,350,384/-
  6. 6.Costs of the suit to the Claimant
  7. 7.Lifting of the freeze on the Claimant's account at Enterprise Road Branch

Authorities

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Legislation

  • Employment ActSection 28
  • Industrial Court ActSection 12

Cases cited (7)

  • Peter Maina Kimani v. Mwalimu Coop SACCO
  • Robert Shironko Shunet v. Kenya Post Ofice Savings Bank
  • Anne Ndirangu v. NSSF
  • Edward Munene v. Equity Bank
  • Beatrice Osir v. Board of Trustees Telposta Pension Scheme
  • Jane Wairimu Machira v Mugo Waweru Associates
  • Ivetta Mkala v Nation Media
Jurisdiction invoked
Section 12 of the Industrial Court Act

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, "Miringu v Barclays Bank of Kenya Limited (Cause 29(N) of 2010) [2014] KEIC 135 (KLR)", Case Analysis (2014). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keic/2014/135/eng@2014-01-10

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