Kenya Commercial Bank v Korir (Civil Appeal 512 of 2019) [2025] KECA 1978 (KLR)
The bottom line
#The Court of Appeal stripped an eight-month unfair dismissal award from a former KCB teller, holding employers cannot be liable for conditions they were never told about.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the learned Judge erred in awarding compensation to the respondent while at the same time finding that the termination was normal
Key legal issues
#Whether compensation for unfair dismissal could be awarded where the trial court had converted a summary dismissal to a normal termination
No. Having found the termination normal under the contract of service, the learned Judge could not then award eight months' salary as compensation for unfair dismissal; those orders were ambiguous and inconsistent, requiring reversal.
The Court held that the Judge's final orders were self-contradictory: he correctly found the termination was normal per the contract, yet awarded unfair-dismissal remedies. Since the respondent admittedly failed to resume duty after authorised leave, and his alleged mental condition was only communicated to the appellant after the termination decision, there was no basis for unfair-dismissal remedies. The Judge's misdirection warranted interference by reversal.
Whether the respondent was unfairly dismissed
No. The termination was a normal termination because the appellant was unaware of the respondent's medical condition when it dismissed him for absconding duty.
The Court accepted that the respondent failed to resume duty on expiry of authorised leave, was removed from the payroll, and his services terminated. The alleged mental condition was not known to the appellant at the time of dismissal and was only raised on appeal. In those circumstances the dismissal could not be characterised as unfair, and remedies under sections 49 and 50 of the Employment Act were unavailable.
Legal principles established
#- Where a trial court converts a summary dismissal to a normal termination, it cannot simultaneously award compensation for unfair dismissal; a dismissal for absconding duty, where the employer was unaware of the employee's medical condition at the time, is not unfair.
- A first appeal is by way of rehearing, with an obligation to re-appraise and re-evaluate the entire evidence and make independent inferences, while making due allowance for not having heard the witnesses.
Court orders
#- 1.The judgment and decree of the Employment and Labour Relations Court are set aside and substituted with an order that, the respondent's termination being a normal termination, he will be paid salary in lieu of notice as per his contract of service and any other exit benefits and allowances he was entitled to as per that contract
- 2.Each party shall bear own costs of the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Employment & Labour Relations Court
- Not stated in judgment
- Jurisdiction invoked
- First appeal to the Court of Appeal under rule 31(1)(a) of the Court of Appeal Rules
Relief refused
#Compensation of eight months' salary for unfair dismissal
The Court found the respondent was not unfairly dismissed as his mental condition was unknown to the appellant when it terminated his services
Costs
Each party shall bear own costs of the appeal.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Ultimately, we allow the appeal to the extent that the judgment and decree of the Employment and Labour Relations Court is set aside and substituted with an order that, the respondent’s termination being a normal termination, he will be paid salary in lieu of notice as per his contract of service and any other exit benefits and allowances he was entitled to as per that contract.
Each party shall bear own costs of the appeal.
we are not persuaded that the respondent was unfairly dismissed. Neither was he entitled to the remedies for unfair dismissal.
this being a first appeal, we proceed by way of a re-hearing with express obligation to re-appraise and re- evaluate the entire evidence with a view to making our own independent inferences and conclusions.
Issues in the judgment
#The judgment records the respondent's dismissal date variously as 17th June, 2011, while the narrative of events (letters of 2010) indicates the termination decision and payroll removal occurred in 2010; the internal chronology appears inconsistent.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Commercial Bank v Korir (Civil Appeal 512 of 2019) [2025] KECA 1978 (KLR)", Case Analysis (2025). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1978/eng@2025-11-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.