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ELRCPartially AllowedNot stated in judgment· [2015] KEELRC 52 (KLR)

Sammy Kipmeli Yater v Co-operative Bank Of Kenya [2015] KEELRC 52 (KLR)

Industrial Court (Employment and Labour Relations Court)
18 December 2015
MNMathews Nderi Nduma
1,656 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~7 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled a bank unlawfully dismissed an employee twice punished for the same offence, awarding over Kshs. 1.1 million.

What this practically means

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Executive summary

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The Claimant, a bank supervisor who served for fifteen years and rose to acting Operations Manager at the Nakuru Branch, was suspended in June 2007 pending investigation of a loss of Kshs.1,796,300.00. He received a first warning on 6th July 2007 for flouting cash movement procedures, was reinstated, and was then summarily dismissed on 11th September 2007 following a disciplinary hearing for the same transaction. He claimed two months' salary in lieu of notice, service pay for fifteen years, two months' house allowance and a certificate of service. The Respondent admitted the employment particulars and the disciplinary history but maintained the dismissal was justified, praying for dismissal of the suit. The Court framed three issues: valid reason, fair procedure, and remedy. It found undisputed that the cash was collected from Oriental Commercial Bank by the Branch Manager (the Claimant's superior) and a junior cash officer contrary to the normal procedure of delivery, and inferred they were to blame for the loss. The Court held the Respondent acted unlawfully in punishing the Claimant twice for the same offence, contrary to its own staff operations manual and the principle of legality prohibiting double jeopardy, breaching Section 45(2)(a) and (c) of the Employment Act. The Claimant was awarded ten months' salary as compensation under Section 49(1)(c), one month's notice pay per the Staff Manual, and two months' house allowance (uncontroverted), totalling Kshs.1,104,765 with interest from filing. The severance pay claim was dismissed for want of proof. The Respondent was directed to issue a certificate of service within thirty days and to pay costs of the suit.

Key legal issues

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01

Validity of summary dismissal for loss of cash where claimant had already been warned for the same offence

Holding

Dismissal was without valid reason; double punishment for the same offence was unlawful

Reasoning

The Court found that the Claimant received a first warning for the same transaction for which he was later summarily dismissed. The staff operations manual did not provide for double punishment. The actual culprits were the Branch Manager and cash officer who flouted procedure by collecting the cash. The Claimant demonstrated on a balance of probability that the Respondent acted unlawfully and unfairly.

p. 3
02

Fairness of the disciplinary procedure

Holding

Procedure violated the Respondent's own internal disciplinary procedure and the principle of legality, breaching Section 45(2)(a) & (c) of the Employment Act

Reasoning

The Respondent flouted its own operations manual by first subjecting the Claimant to a disciplinary process, issuing a first warning, then summarily dismissing him for the same offence without reasonable explanation. The dismissal was therefore substantively and procedurally unfair under Section 45(2)(a) and (c).

p. 3
03

Quantum of compensation for unfair summary dismissal

Holding

Ten months' salary awarded under Section 49(1)(c) as read with 49(4), taking into account fifteen years of service, loss of income, loans and young children

Reasoning

The Court considered the Claimant's long service of fifteen years, difficulty securing employment in banking after an accusation of loss of funds, loss of income, big loans, and young children, against the maximum of twelve months' salary, and awarded ten months.

p. 3

Legal principles established

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  • Double punishment for the same offence violates the principle of legality and renders dismissal without valid reason
  • Failure to provide a certificate of service is an aggravating factor in assessing compensation

Court orders

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  1. 1.Kshs.981,410.00 compensation for unlawful and unfair termination (ten months salary)
  2. 2.Kshs.98,141.00 in lieu of one month's notice
  3. 3.Kshs.25,214.00 being two months house allowance
  4. 4.Respondent to provide the Claimant with a certificate of service within thirty (30) days
  5. 5.Award payable with interest at Court rates from date of filing suit till payment in full
  6. 6.Respondent to pay the costs of the suit
Jurisdiction invoked
Employment Act, 2007 (Sections 45 and 49) - first-instance jurisdiction over employment disputes

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, "Sammy Kipmeli Yater v Co-operative Bank Of Kenya [2015] KEELRC 52 (KLR)", Case Analysis (2015). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/52/eng@2015-12-18

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