Were v Nairobi Chapel & 2 others

loans amounting to approximately Kshs. 1,000,000 and a mortgage balance of about Kshs. 3,000,000. The claim is that by a letter dated 20 September 2019, the 1st Respondent confirmed the claimant’s farewell package including: a) an ex gratia payment, b) continuation of her in-patient medical cover until 31 January 2020, c) retention of her work laptop, d) release of her pension benefits, and e) Issuance of a certificate of service. On 3 October 2019, the 1st Respondent deposited two sums of Kshs. 1,875,000 each into the Claimant’s account held with the 2nd Respondent, NCBA Bank Kenya PLC, totalling Kshs. 3,750,000, which were described as gratuity and a gift. The Claimant believed the payments were part of the agreed separation package; she utilised the funds to clear her personal and car loans and to make substantial repayments on her mortgage. However, on 5 November 2019, the claimant received a telephone call from the 1 st Respondent’s accountant demanding a refund of Kshs. 1,875,000, allegedly on the basis that the payment belonged to the 1st Respondent. She maintained that no written explanation was provided to justify the demand. The claim is also that on 7 November 2019, the 1 st Respondent instructed the 2nd Respondent to reverse one of the payments amounting to Kshs. 1,875,000 without notifying her. As a consequence, her current and savings accounts were allegedly overdrawn, and the 2nd Respondent created an overdraft facility on her account, which continued to accrue interest. The claim is that the bank acted unlawfully by recovering the funds without notifying the claimant. The Claimant also later learnt that another person had filled her position as Director of Social Justice on 1 August 2019, and that her duties had been redistributed to junior staff members without her knowledge. She maintained that these actions demonstrated a deliberate scheme by the 1st and 3rd Respondents to force her out of employment and amounted to constructive dismissal. The Claimant is seeking the following: i. A declaration that the 1st Respondent wrongfully and constructively dismissed the Claimant; ELRC NAIROBI JUDGMENT CAUSE NO. 198 OF 2020 2

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ii. Full refund paid to her on account of all seized funds in her accounts totalling Kshs. 1,875,000 paid to her on account of her termination of employment from 7 November 2019 to date of judgment; iii. Interest on (ii) at court rates; iv. Salary in lieu of notice; v. Service pay for 5 years at a rate of Kshs. 230,000 per year for every year worked; vi. Leave allowances computed at the rate of; vii. Damages for breach of employment contract; viii. Certificate of service; and ix. Costs of this suit. In the Claimant’s Reply to the Respondent’s response and Defence to counterclaim, on the enjoinment of the 3rd Respondent to the Proceedings, the Claimant maintained that the 3rd Respondent was properly enjoined in these proceedings and that, as the head of the 1st Respondent, he played an active and pivotal role in her constructive dismissal. She further stated that the Court had already determined the question of his joinder in its ruling delivered on 16 September 2021. The Claimant denied that supervision of the Mwangaza Ulio Tumaini Clinic formed part of her contractual duties as Director of Social Justice or that she was ever remunerated for undertaking those responsibilities. She reiterated her pleadings that the clinic was profitable, she had been pressured to utilize clinic funds to support the 1st Respondent's financial obligations, and that the 3rd Respondent coerced her into tendering her resignation by promising her a substantial farewell package. The Claimant further maintained that she had informed the 1 st and 3rd Respondents that she intended to utilise her terminal dues and ex gratia payment to offset her personal loans. She denied that the second payment of Kshs. 1,875,000 was unauthorised, asserting that the Respondents had acknowledged receipt of the funds and that the allegation that the payment was made in error was merely an afterthought. The Respondents knew she would immediately apply the funds towards clearing her financial obligations and were aware that reversing the payment would inevitably cause her bank account to overdraw. The Claimant maintained that she legitimately expected to receive the entire sum of Kshs. 3,750,000 as part of her agreed separation package. ELRC NAIROBI JUDGMENT CAUSE NO. 198 OF 2020 3

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In response to the counterclaim, the Claimant denied unlawfully retaining the 1st Respondent's property or refusing to hand over the clinic. She asserted that the 1st Respondent never made any genuine attempt to recover the alleged property but instead revoked her access to the clinic premises, bank accounts, cheque books, M-Pesa accounts and financial records. She contended that the demand for the alleged property was an afterthought made only after she had instituted these proceedings. The Claimant further denied that she failed to surrender any property belonging to the 1 st Respondent. She managed the clinic without remuneration and, at the 3rd Respondent's request, continued to provide oversight and management until July 2022, when the facility was taken over by the 1st Respondent's employees or agents. The Claimant prayed for dismissal of the 1st and 3rd Respondents' counterclaim with costs and interest. In her evidence, the Claimant testified that she tendered her resignation on 1 September 2019 by giving one month's notice. The resignation was accepted and that, upon her exit, she received an ex gratia payment of Kshs. 3,700,000. The 3rd Respondent gave her a gift of Kshs. 1,000,000, issued her with a certificate of service, and retained her on the employer's medical cover until January 2020. The Claimant also testified that she was paid her pension benefits, was permitted to retain her laptop, took leave whenever necessary during her employment, and that the Respondents remitted her NSSF contributions. On the remittance of the payments, the Claimant testified that a double payment was made to her account, but the said amount was reversed; her account was placed in overdraft, and she was not consulted by the 2nd Respondent before the reversal. In reply, the 1st and 3rd Respondents filed their joint response that the 3rd Respondent was improperly joined to the proceedings since there existed no employer-employee relationship between him and the Claimant. The Claimant's duties as Director of Social Justice included overseeing the Mwangaza Ulio Tumaini Clinic, and that she was adequately remunerated for those responsibilities. The Respondents admitted that the 1st Respondent experienced financial difficulties following the loss of donor funding, which affected its ability to continue paying the Claimant's salary. ELRC NAIROBI JUDGMENT CAUSE NO. 198 OF 2020 4

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However, fundraising formed part of the Claimant's job description. That meeting part of her salary from funds generated by the clinic was neither unusual nor improper. She denied having been compelled to engage in any unlawful financial transactions. The Claimant voluntarily resigned after being informed of the Respondent's financial challenges. There was no coercion or intolerable working environment, and discussions regarding her farewell package only arose after she had tendered her resignation. Regarding the disputed payment of Kshs. 1,875,000, the response was that the respondents authorised only one (1) payment into the Claimant's account and that the 2nd Respondent made the second payment without their authority. Upon discovering the unauthorised debit from the 1st Respondent's account, the 1st Respondent requested that the 2nd Respondent rectify the error, which the 2 nd Respondent did by reversing the payment. They denied any responsibility for the overdraft allegedly created in the Claimant's account, contending that any liability arising from the reversal lay solely with the 2nd Respondent, from whom they would seek indemnity if necessary. The Respondents denied that the Claimant had been constructively dismissed, maintaining that her resignation was voluntary. They further denied acting unlawfully or maliciously and asserted that the Claimant had been notified that the second payment was erroneous, yet chose to use the funds. The Respondents cannot be held liable for the reversal of the erroneous payment. The Respondents also opposed the reliefs sought by the Claimant. The claim for constructive dismissal was unfounded since no termination occurred. The payment made to the Claimant adequately covered salary, rather than notice and service pay. The Claimant had exhausted all her leave entitlement, there was no breach of contract, and a certificate of service had already been issued. The response was that no cause of action had been disclosed against the 3rd Respondent and urged the Court to dismiss the claim against him. The response is that the Respondents acted in good faith throughout the separation process. The 3rd Respondent personally gifted the Claimant Kshs. 1,000,000 to supplement her separation package. The 1st Respondent settled the PAYE liability without deducting it from ELRC NAIROBI JUDGMENT CAUSE NO. 198 OF 2020 5

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the dues, and continued paying her salary for October, November, and December 2019 despite her last working day being 30 September 2019. In counterclaim, the 1st and 3rd Respondents' case is that following the claimant’s separation, she unlawfully retained possession and control of the Mwangaza Ulio Tumaini Clinic and its assets, including bank accounts, cheque books, M-Pesa accounts, financial records and access to rental property. The clinic belonged to the 1 st Respondent; supervision of the clinic had merely formed part of the Claimant's employment duties, and despite repeated requests, she had failed to hand over the clinic, thereby occasioning loss to the 1st Respondent. The Respondents claim for dismissal of the Claimant's suit with costs and for orders compelling the Claimant to immediately hand over the clinic and its assets to the 1 st Respondent. In evidence, the 1st and 3rd Respondents called the 3rd Respondent, Oscar Mwangi Muriu, the presiding Bishop of the 1st Respondent, who testified that the Church employed the Claimant to oversee social justice ministry and she ran a clinic in the Korogocho area for medical purposes. He held discussions with the Claimant before her resignation regarding the programme's weak financial status and the prospect of its closure, and what would happen to the children and employees. It was agreed to wind up the Claimant’s position as a result. Muriu testified that the 1st Respondent paid the Claimant Kshs. 1,875,000: a) Kshs. 875,000 as gratuity; b) Kshs. 1,000,000 as service pay. The 1st Respondent further paid: a) Kshs. 2,397,000 equivalent of one-month’s salary for every year worked, and b) Kshs. 1,000,000 as a gift. In total, the Claimant received Kshs. 3,397,000. Upon cross-examination, the 3rd Respondent testified that he advised the Claimant to resign so that they could have a soft landing and pay her loans. Her terminal dues were agreed verbally between the 3rd Respondent and the Claimant. The 3rd Respondent testified that the payment of the additional amount of Kshs. 1,875,000 was erroneous because the transfer was duplicated due to a system error, resulting in a double payment, and it took one month after reconciliation of accounts to notice the error. ELRC NAIROBI JUDGMENT CAUSE NO. 198 OF 2020 6

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In response, the 2nd Respondent’s case is that both the Claimant and the 1st Respondent were account holders at the 2nd Respondent Bank as per the Account Opening form dated 22 October 2008, which contained the terms and conditions of the account. On 3 October, the 1 st Respondent initiated an online bank transfer to the Claimant for the sum of Kshs. 1,875,000. However, due to a technical error in the system beyond the control of the 2nd Respondent, the transfer was duplicated, and the Claimant received an additional sum of Kshs. 1,875,000 totalling Kshs. 3,750,000. Upon noting the said error, the 1st Respondent, vide a letter dated 8 November 2019, instructed the 2nd Respondent to reverse the transfer of the erroneous sum of Kshs. 1,875,000. Consequently, the erroneous additional sum was reversed in accordance with the 1 st Respondent’s instruction, general banking practice and prudential guidelines. The 2nd Respondent counterclaimed against the Claimant, stating that the Claimant was informed about the error and was required to refund the erroneous sum. However, the Claimant failed to refund the said sum and instead used the funds to offset her loans. As a result, as at 15 September 2022, the Claimant’s account had a debit balance of Kshs.1,681,121.95, which sum continues to accrue interest in line with Clause 9(c) of the General Terms and Conditions. In the Counterclaim, the 2 nd Respondent seeks Judgment against the Claimant: a) The sum of Kshs. 1,681,121.95 as at 15 September 2022 together with interest thereon at the bank’s commercial rates; and b) Costs of the suit and interest thereon at the bank’s commercial rates. In evidence, the 2nd Respondent called Christine Wahome, a Senior Legal Counsel for the 2 nd Respondent, who testified that as a banker to the Claimant and the 1 st Respondent, the Claimant signed account opening forms which contained the prevailing terms and conditions of operating the account which the Claimant signed up to. The 1 st Respondent initiated an internal bank transfer of Kshs. 1,875,000 to the Claimant’s account with the 2 nd Respondent. However, after a month, the 1 st Respondent informed the 2nd Respondent bank that the payment had been duplicated and, in a letter dated 8 November 2019, advised the 2 nd Respondent bank to recall the duplicated payment. ELRC NAIROBI JUDGMENT CAUSE NO. 198 OF 2020 7

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However, at the time, the Claimant had already utilised the amounts and this necessitated the 2nd Respondent to overdraw the Claimant’s account to reverse the erroneous payments in accordance with Clause 9(c) of the Bank’s General Terms and Conditions, which stipulated that money credited in the account in error must be returned with interest. The witness further stated that to date, the Claimant is yet to reimburse the Bank and urges the Court to allow the Counterclaim as sought. Determination The issues that emerge for determination can be summarised as follows: Whether there was wrongful termination of employment. Whether the remedies sought by the claimant should issue. Whether the counterclaim by the respondents is with merit. Who should pay costs. The claimant also filed a List of issues for determination dated 29 September 2020, which are taken into account. It is common cause that, by notice dated 1 September 2019, the claimant resigned from her employment with the 1st respondent, with effect from 30 September 2019. The claimant did not offer any reasons in the letter, save to express appreciation for the opportunity to serve the employer. It is also not in dispute that through a reply dated 20 September 2019, the 1 st respondent accepted the notice of resignation and offered the following: As a follow-up of our conversation with you and in recognition of your faithful service, we have extended to you the following:  Payment of ex gratia gift.  Your current inpatient Medical Cover till 31 January 2020.  The laptop you have been using while on staff.  Release of your Pension dues from the Pension Fund Manager. Please find enclosed a Pension Withdrawal Form; return it to the HR Office to facilitate the withdrawal process.  A Certificate of Service. The parties had engaged in a conversation that resulted in the above offer and exit or separation ELRC NAIROBI JUDGMENT CAUSE NO. 198 OF 2020 8

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agreement. The claimant accepted the package on the basis that the programme she was running was experiencing financial difficulties and that her position was untenable. She thus offered to resign. The 1st respondent, in return, offered the exit package. The evidence that the claimant's position was soon replaced is uncontested. The claimant is seeking under constructive dismissal. Her basis is that the 3 rd respondent, acting for the 1st respondent, impressed on her that the financial position of the project she was running was difficult and that she could not pay her salary after the loss of the foreign function, and thus she should resign. At the time, an audit had been undertaken, and the project was financially sound. She, however, resigned without disclosing to the 3 rd Respondent that she had a personal loan with the 2nd Respondent which included a car and personal loan of Ksh. 1,000,000, a mortgage of Ksh. 3,000,000. On this basis, the 3rd Respondent offered a farewell package. On 3 October 2019, the 1st Respondent paid the claimant Ksh. 3,750,000 into her bank account held with the 2nd Respondent in two equal instalments of Ksh. 1,875,000. The payments were described as gratuity. Immediately, the claimant utilised these payments to offset her loan accounts with the 2 nd respondent. She paid Ksh. 1,000,000 for the personal and car loans and Ksh. 2,000,000 towards the mortgage facility. On 5 November 2019, the 1st respondent’s accountant called the claimant advising her to return Ksh. 1,875,000 allegedly paid in error. On 7 November 2019, the 1 st respondent advised the 2nd respondent to recall this payment. In constructive dismissal, the employer is guilty of conduct which is a significant breach goin g to the root of the contract of employment or which shows that the employer no longer inten ds to be bound by one or more of the essential terms of the contract. In such a scenario, the e mployee is entitled to treat herself as discharged from any further performance. If she does so, then she terminates the contract by reason of the employer’s conduct as held in Leena Apparels (EPZ) Limited v Nyevu Juma Ndokolani [2018] KECA 308 (KLR). The court held: [She] is constructively dismissed. The employee is entitled in those circumstances to le ave at the instant without giving any notice at all, or alternatively, he may give notice ELRC NAIROBI JUDGMENT CAUSE NO. 198 OF 2020 9

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and say that he is leaving at the end of the notice. But the conduct must in either case be sufficiently serious to entitle him to leave at once The employer's conduct constituted a repudiatory breach of the contract of employment. In Coca Cola East & Central Africa Limited v Maria Kagai Ligaga [2015] KECA 394 (KLR), the court held that in constructive dismissal, the issue is primarily the conduct of the employer and not the conduct of the employee. Unless there is waiver, estoppel or acquiescen ce in issue. An employer is required not to engage in conduct that amounts to a repudiatory br each of contract. Fundamentally, the provisions of section 43(2) of the Employment Act (the Act) also apply. The question is whether the employer had a genuine and justified cause leading to the termination of employment. In this case, the 3rd respondent impressed upon the claimant that the claimant's project was experiencing financial difficulties. To insulate her, a farewell package was offered. The offer did not give the figures. The claimant knew and shared the financial challenges she faced, including loans and a mortgage amounting to Ksh. 3,000,000. Thus, immediately upon receipt of the farewell package, she applied the payments made by the 1st respondent. At the end of her employment on 30 September 2019, the claimant was not aware of the nature of the farewell package. Sharing her financial commitments with the 3 rd respondent created a legitimate expectation that the payment made to her on 3 October 2019 constituted the package. Creating an environment of financial difficulties, and hence the employee should tender her resignation, cannot be defined in any terms other than constructive dismissal. It is also an unfair labour practice. Filling the position held by the claimant soon after her exit also confirms the constructive dismissal. Whether the project was not adequately funded or not, if such an operational reason genuinely existed, the position should have been declared redundant to allow the claimant to secure her severance pay. The court finds there was constructive dismissal. The justification by the 1st and 3rd respondents that the resignation was voluntary and the claimant accepted the farewell package cannot sanitise the constructive dismissal. ELRC NAIROBI JUDGMENT CAUSE NO. 198 OF 2020 10

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Notice pay is due together with compensation. On the recall of Ksh. 1,875,000 paid to the claimant’s account held by the 2 nd respondent, the 1st and 3rd respondent’s case was that this was done by error. The intention was to pay one instalment, but the accounts office made the payment without authorisation. The 1st Respondent’s witnesses testified that the claimant was notified of the error but failed to make a refund. The claimant admitted that on 3 October 2019, the accountant called her about the alleged error in the payments, but she could not understand how the error had occurred, as she had genuinely waited for the payment and had since applied it to offset her loan balance. Without resolving the matter, the 1st respondent advised the 2nd respondent to refund the money. On its part, the 2nd respondent asserted that the double payment to the claimant was due to a technical error in the system beyond the 2nd respondent's control; the transfer was duplicated. The 2nd Respondent proceeded and removed the money from the claimant’s account to the 1 st Respondent’s account. However, the 2nd respondent did not engage its client, the claimant. Notwithstanding a technical error that led to the payment, the change in the accounts was effected. Immediately the 1st respondent paid monies into the claimant's account, responsibility changed. Any action with regard to the claimant’s account in the movement of any monies therein or therefrom, she was owed the duty of care. Whatever policies and regulations exist within the 2 nd respondent bank, the client has a right to know before any action is taken on her bank account. The movement of funds from the claimant’s account with wanton abandon to the respondent’s account was in breach of that duty of care and information. Such breach led to great prejudice to the claimant. The loss incurred therefrom was not for the 1 st or 3rd respondent to bear. The liability rests exclusively with the 2nd respondent. The funds withdrawn from the claimant’s account on 7 November 2019 without the authority of the claimant to the benefit of the 1 st respondent shall be borne by the 2nd respondent. Whatever error existed on the part of the 1st respondent or the ELRC NAIROBI JUDGMENT CAUSE NO. 198 OF 2020 11

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technical error in the system beyond the control of the 2 nd respondent should not be at the expense of the claimant. The claimant was courageous enough to trust the 2 nd respondent with its banking. Such trust was broken when the 2nd respondent accessed her account and, suo motu, decided how much to extract and send to a third party. Whatever justification the 2 nd respondent felt existed, recourse was to be taken with the account holder, the claimant. This was not done. The 2nd respondent shall pay the claimant back the sum of Ksh. 1,875,000 seized from her account in October 2019, plus all accrued interests from the date of removal until payment in full. The claimant did not testify to any losses on her bank loans or mortgage repayments after the wrongful seizure of funds from her bank accounts held with the 2 nd respondent. The repayment of the same with interest from the date of removal shall suffice. Save, the interest rate to be applied shall be the current commercial bank rate. The claimant is also seeking payment of service pay for 5 years for every year worked. Termination of employment has been addressed above as wrongful and as constructive dismissal, which is redressed. The claimant was paid a farewell package. In the employment contract, service pay was not a term thereof. The salary paid was not the Minimum Wage regulated under the Wages Orders, and one of the benefits that accrued upon her exit from employment was inpatient medical cover until 31 January 2020. This was post-employment, and under section 35(6) of the Act, the claim was thus secure, and no service pay is due. Regarding the claim for leave allowance, this is also not a term of contract. The claimant does not claim any accrued leave days. On the claim for damages for breach of the employment contract, on the findings that there was constructive dismissal, the claimant is entitled to compensation under section 49 of the Act. The court takes into account that the 1 st respondent offered a good and generous exit package under the farewell package of Ksh. 3,750,000 plus inpatient medical cover, laptop and Certificate of Service. Although the letter dated 20 September 2019 did not define the amount to be paid in ex gratia, the deposit of Ksh. 3,750,000 into the claimant’s bank account held by the 2nd respondent on 3 October 2019 was a generous payment. This taken into account, a compensation of 3 months gross wages is hereby found appropriate. ELRC NAIROBI JUDGMENT CAUSE NO. 198 OF 2020 12

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The claimant was last earning, as shown by the payment statement attached to the Memorandum of Claim, which shows Ksh. 141,000. Compensation is assessed at Ksh. 432,000. Notice pay is due at Ksh. 141,000. The refund of money seized from the claimant’s account shall comprise Kshs. 1,875,000 with interest at commercial rates from the date of removal in October 2019 until paid in full. Regarding the 1st and 3rd respondents' counterclaim for assets and properties retained by the claimant upon her resignation. The 3rd respondent testified that the claimant unlawfully retained possession and control of the Mwangaza Ulio Tumaini Clinic and its assets, including bank accounts, cheque books, M-Pesa accounts, financial records and access to rental property. Upon cessation of employment, the claimant had a duty to the 1 st respondent to hand over its assets. Although aggrieved by the constructive dismissal, holding back the employer's property is not justified. The 1st respondent has not quantified any loss suffered by the claimant as a result of its retention of the assets. These should be immediately returned. The court takes into account that since 30 September 2019, time has passed and if these assets were not returned, they could have gone to waste. In any case, the 1 st respondent has since secured the position held by the claimant with other persons. Whatever remains of the bank accounts, cheque books, M-Pesa accounts, financial records and access to rental property shall be returned within 14 days. The 2nd respondent also counterclaimed for Kshs. 1,681,121.95 as at 15 September 2022 together with interest thereon at the bank’s commercial rates. Christine Wahome testified that following instructions from the 1st Respondent through a letter dated 8 November 2019, they did a reversal from the claimant’s bank account for 1,875,000. That the reversal was done in accordance with the 1st Respondent’s instruction, general banking practice and prudential guidelines. As a result of the reversal, the 2 nd Respondent asserted that the Claimant was informed about the technical error and was required to refund the erroneous sum. However, the Claimant ELRC NAIROBI JUDGMENT CAUSE NO. 198 OF 2020 13

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neglected to refund the said sum and instead utilised the funds to offset her loans. As at 15 September 2022, the Claimant’s account had a debit balance of Kshs. 1,681,121.95, which sum continues to accrue interest in line with Clause 9(c) of the General Terms and Conditions. The wrongful access to the claimant’s bank account held by the 2 nd respondent is not justified. The referral of funds without recourse to the claimant is a breach of duty owed to the claimant by the 2nd respondent. Upon the wrongful action by the 2nd respondent, liability cannot accrue to the claimant in whatever manner. The counterclaim is not justified. The 2 nd respondent shall regularise the claimant’s account as before the wrongful reversal to the benefit of the 1 st respondent in October 2019. Based on the findings above, the order is to calculate the amount in Ksh. 1,875,000 plus interest at commercial rates; these shall be paid to the claimant less what is claimed in debit balance of Ksh. 1,681,121.95, whichever is higher. Apply an offset without any disadvantage to the claimant. The respondents' counterclaims are without merit. Accordingly, judgment is hereby entered for the claimant in the following terms: a) A declaration that the 1st Respondent constructively dismissed the Claimant; b) Compensation Ksh. 423,000. c) Notice pay Ksh. 141,000. d) Refund by the 2nd respondent of all monies seized from the Claimant's account at Ksh. 1,875,000 and paid to the 1 st respondent in October 2019 with interest calculated at commercial rates from such date and until paid in full. e) The monies due above (d) shall be offset from the claimed debit balance of Ksh. 1,681,121.95 whichever is higher. f) The counterclaims are hereby dismissed. g) The respondents shall pay due costs to the claimant. Delivered in open court this 14th day of August 2026 M. MBARŨ JUDGE In the presence of: Court Assistant: Kemboi ……………………………………………… ELRC NAIROBI JUDGMENT CAUSE NO. 198 OF 2020 and …………………………………..……… 14

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