Barclays Bank of Kenya Limited v Banking Insurance & Finance Union (Civil Appeal 7 of 2020) [2026] KECA 851 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed employers must follow their CBAs' disciplinary procedures even after meeting Employment Act minimums, though excessive compensation awards can be reduced.
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 grievant's employment contract was terminated for valid reasons
- 2.Whether the learned judge erred in fact and in law in finding that the grievant was unlawfully and unfairly terminated
- 3.Whether the trial court erred in fact and in law in awarding the grievant remedies for unfair termination
Key legal issues
#Whether the termination was procedurally fair notwithstanding compliance with the minimum procedural safeguards of the Employment Act
The termination was procedurally unfair and in breach of contract because the employer failed to follow the CBA's prescribed warning procedure for negligence under Clause A5(b)(iii), which required two prior written warnings within 12 months before dismissal on a third offence.
Section 59(1)(b) and (3) of the Labour Relations Act incorporates a registered CBA into individual contracts of employment, a position affirmed in the Kenya Airways case. The grievant was a unionisable employee subject to the CBA, which provided a structured disciplinary process for negligence including prior written warnings. The employer terminated without any warning in a 23-year clean record, relying only on the statutory minimum. Section 26(2) of the Employment Act makes more favourable contractual terms prevail over statutory minima, so failure to follow the CBA procedure rendered the termination unfair.
Whether the award of twelve months' gross salary as compensation was justified
The maximum award of twelve months' gross salary was excessive; compensation is discretionary, must follow the section 49(4) factors, and the grievant's contributory conduct justified reduction to four months' gross salary.
Section 49(1)(c) awards are discretionary and must be fair and proportionate, guided by section 49(4), per Kenfreight and Mwita Thomas Nyangi; the maximum is reserved for exceptional cases and must be justified by evidence. Although the termination was procedurally unfair, it was undisputed that the grievant failed to refer two flagged transactions to BASIS, amounting to contributory negligence under section 49(4)(k). The maximum award therefore failed to reflect her contribution to the termination and was reduced to four months.
The duty of a first appellate court
As a first appellate court, the Court was bound to re-evaluate and reappraise the evidence, while bearing in mind that it did not see or hear the witnesses.
Relying on Abok James Odera v John Patrick Machira, the Court restated the settled duty of a first appellate court to revisit the evidence and satisfy itself that the trial court reached the right conclusion, subject to the caveat that it lacks the advantage of observing witness demeanour.
Legal principles established
#- A registered Collective Bargaining Agreement is binding on the parties and all unionisable employees, and its terms are incorporated into individual contracts of employment by operation of law.
- Where a CBA prescribes a more elaborate disciplinary procedure than the statutory minimum, the employer must comply with it; compliance with the Employment Act minimum alone does not render a termination fair.
- Contractual terms more favourable than statutory minima prevail, and an employee's contributory conduct under section 49(4)(k) of the Employment Act is a relevant factor in reducing compensation under section 49(1)(c).
Court orders
#- 1.Set aside the trial court's award of twelve (12) months' salary as compensation for unfair termination
- 2.Substituted an award of four (4) months' gross salary in place of the twelve months' award
- 3.Awarded the appellant one quarter (¼) of the costs of the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Employment and Labour Relations Court (superior court)
- Not stated in the judgment as provided
- Jurisdiction invoked
- First appellate jurisdiction of the Court of Appeal over a decision of the Employment and Labour Relations Court (the judgment does not cite a specific constitutional/statutory invocation; it treats the matter as 'this first appeal')
Relief refused
#Full setting aside of the trial court's judgment finding the termination unfair
The Court found the termination procedurally unfair because the CBA-mandated warning procedure was not followed; only the quantum of compensation was disturbed
Costs
The appellant shall have ¼ 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.
It follows that where a CBA prescribes a more elaborate disciplinary process than the statutory minimum, the employer is bound to comply with it.
Its failure to comply with that mandatory procedure rendered the termination procedurally unfair and in breach of contract, notwithstanding any compliance with the minimum requirements under the Employment Act.
This conduct amounts to contributory negligence within the meaning of section 49(4)(k) of the Employment Act and is a relevant factor in assessing the quantum of compensation.
We accordingly set aside the award by the trial court of twelve (12) months' salary and substitute there for an award of four (4) months' salary. The appellant shall have ¼ costs of the appeal. It is so ordered.
Issues in the judgment
#The same Kenfreight authority appears with two different citations and years within the judgment: '[2014] eKLR' when cited by the appellant ('Kenfreight (E.A) Limited -vs- Benson K. Inguti [2014] eKLR') and '[2019] eKLR' when cited by the court ('Kenfreight (EA) Limited -vs- Benson K. Nguti [2019] eKLR'), with the party names also spelled differently.
The judgment's delivery date is printed as 30th April 2026, which appears inconsistent with the 2013 termination and the citation years of the authorities relied upon.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Rift Valley Bottles Ltd v Thuo (Civil Appeal E235 of 2021) [2026] KECA 1495 (KLR)[2026] KECA 1495 (KLR)24 Jul 2026applied
Cite this brief
#Cite this brief
Caselaw, "Barclays Bank of Kenya Limited v Banking Insurance & Finance Union (Civil Appeal 7 of 2020) [2026] KECA 851 (KLR)", Case Analysis (2026). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/851/eng@2026-04-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.