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Court of AppealDismissedCivil Appeal 28 of 2017

Beth Watene Wanjiru v Barclays Bank Limited

Court of Appeal
7 October 2022
1,400 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal confirmed that a bank lawfully fired an employee for losing Ksh.500,000 because the disciplinary process followed the Employment Act.

What this practically means

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Executive summary

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The appellant, a long-serving bank clerk, was suspended after Ksh.500,000 in her custody was lost on 24 January 2011. She was invited to a disciplinary hearing by letter of 15 February 2011, which expressly informed her she was entitled to be accompanied by a colleague or union representative. The hearing took place on 2 March 2011, after which her services were terminated for negligence on 29 March 2011. Her internal appeal was heard on 19 May 2011 and dismissed. She sued before the Industrial Court (ELRC), claiming she had been denied the right to be accompanied and that the minutes were falsified, and sought declarations, reinstatement or terminal dues and compensation. Nzioki wa Makau, J. dismissed the claim on 12 April 2013. On appeal, Kantai, JA reviewed the record and found the employer had complied with section 41 of the Employment Act: the appellant was given notice, an opportunity to state her case, and an internal appeal. The Court agreed with the trial Judge's finding of negligence and held the termination lawful. Sichale and Omondi, JJA concurred, making Kantai's judgment the judgment of the Court. The appeal was dismissed with costs to the respondent. The decision binds subordinate courts and tribunals on what constitutes a fair disciplinary process under section 41 of the Employment Act.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the respondent had good cause to terminate the appellant's employment following the loss of Ksh.500,000 in her custody
  2. 2.Whether the disciplinary process complied with section 41 of the Employment Act, including the right to be accompanied by a colleague or union representative
  3. 3.Whether the trial Judge erred in dismissing the appellant's claim

Key legal issues

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01

Compliance with section 41 of the Employment Act in the disciplinary process

Holding

The disciplinary process was fair: the appellant was suspended, invited to a hearing with notice of her right to be accompanied, heard, and given an internal appeal which was considered and dismissed.

Reasoning

The Court traced the sequence of letters: suspension on 26 January 2011, invitation of 15 February 2011 expressly stating the employee was entitled to be accompanied by a colleague or union representative, the hearing on 2 March 2011 evidenced by minutes, and the internal appeal heard on 19 May 2011. There was no indication the appellant required accompaniment. The process met the statutory requirements.

p. 3
02

Whether there was good cause for termination

Holding

Loss of Ksh.500,000 in the appellant's custody and her inability to explain it, with negligence established, constituted good cause for termination.

Reasoning

The Court agreed with the trial Judge that the appellant had been negligent in handling cash leading to the loss. The employer gave her an opportunity to explain the loss, took her through a disciplinary process, and considered her appeal. Termination on that basis was lawful and the trial Judge's dismissal of the claim was correct.

p. 3

Legal principles established

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  • An employer who invites an employee to a disciplinary hearing with notice of the right to be accompanied by a colleague or union representative, hears the employee's explanations, and allows an internal appeal, satisfies section 41 of the Employment Act.

Court orders

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  1. 1.Appeal dismissed with costs to the respondent

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Wrote the leading judgment holding that the disciplinary process complied with section 41 of the Employment Act and that the termination was lawful; dismissed the appeal with costs.

The appellant was taken through all the processes required by the Employment Act and her services were lawfully terminated. I have found no merit in his appeal and I would dismiss it with costs to the respondent.p. 3
concurring

Wrote the judgment

Concurred fully with the judgment of Kantai, JA, adding nothing.

I have had the advantage of reading in draft the judgment of Kantai, JA. I am in full agreement with his reasoning and conclusions and, therefore, have nothing useful to add.p. 3
concurring

Wrote the judgment

Concurred with the judgment of Kantai, JA, which became the judgment of the Court.

I have had the benefit of reading in draft, the judgment of Kantai, J.A. I entirely agree with the reasoning and conclusion arrived thereat and have nothing useful to add.
On appeal from
Employment and Labour Relations Court of Kenya at Nairobi
ELRC Cause No. 493 of 2012
Jurisdiction invoked
First appellate jurisdiction over the Employment and Labour Relations Court

Relief refused

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Reinstatement or terminal dues and compensation as sought in the underlying claim

The disciplinary process complied with the Employment Act and the termination was lawful; the appeal lacked merit.

p. 3

Costs

Appeal dismissed with costs to the respondent

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

The appellant was taken through all the processes required by the Employment Act and her services were lawfully terminated. I have found no merit in his appeal and I would dismiss it with costs to the respondent.
p. 3Final orders - dismissal of appeal with costs
It was decided, after the said meeting, that the appellant's services be terminated and, as we have seen, the appellant appealed the decision; her appeal was heard and the respondent reached the decision to uphold the termination.
p. 3Fair disciplinary process and internal appeal
I have considered the whole record and I am in full agreement with the decision reached by the Judge.
p. 3Appellate deference to trial Judge's findings

Issues in the judgment

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minor

Judgment refers to the appellant with male pronouns ('his appeal') despite the appellant being female.

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, "Beth Watene Wanjiru v Barclays Bank Limited", Case Analysis (2022). Civil Appeal 28 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1084/eng@2022-10-07

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