Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCDismissed

Yarrow v National Bank of Kenya Limited (Cause 50 of 2020) [2023] KEELRC 1410 (KLR)

Employment and Labour Relations Court
9 June 2023
ANAbuodha J. N.
3,706 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~15 min to read original · ~4 min brief

The bottom line

#

A Kenyan court upheld a bank's summary dismissal of an employee for fraud, ruling he wasted his chance to defend himself by skipping the disciplinary process.

What this practically means

#

Executive summary

#
The claimant, formerly employed by the respondent bank as Relationship Manager Islamic Division (Eldoret Branch), sued for unfair termination following summary dismissal on April 26, 2019. He alleged the show cause letter and suspension were malicious and void, that the disciplinary notice was too short, that he was not supplied with evidence, and that he could not attend because of criminal charges instigated by the respondent. The respondent alleged the claimant participated in a fraud syndicate at the Eldoret Branch, opening fraudulent accounts, withdrawing Kshs.287,000 from one such account using falsified instructions while captured on CCTV, and exposing the bank to reputational loss. It maintained it granted postponements of the disciplinary hearing and that the claimant refused to acknowledge notices and failed to attend. At trial, the claimant testified he never attended any disciplinary hearing; the respondent called two witnesses on the investigation and human resources procedures. The Court held that the burden of proving the validity of the reason for termination lies with the employer, applied the reasonable-employer test from British Leyland UK Ltd v Swift, and found the allegations of fraud serious and substantiated by investigation. It held the civil standard of balance of probabilities governs notwithstanding the parallel criminal case, and that the claimant's refusal to respond to the show cause letter and to attend the rescheduled hearing meant he squandered his chance to defend himself. The dismissal was found fair and justified; the claim was dismissed with costs.

Questions the Court framed

#

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

  1. 1.Whether the reason for the Claimant's summary dismissal was valid and fair under section 43 of the Employment Act
  2. 2.Whether the disciplinary process accorded to the Claimant met the requirements of a fair hearing
  3. 3.Whether the allegations against the Claimant justified summary dismissal on a balance of probabilities

Key legal issues

#
01

Validity of the reason for dismissal

Holding

The allegations of fraudulent conduct and the Claimant's refusal to address them reasonably justified summary dismissal

Reasoning

The employer, a financial institution where trust and honesty are critical, investigated suspected fraud at the Eldoret Branch. Investigations implicated the Claimant, who withdrew Kshs.287,000 from a fraudulent account while captured on CCTV. The reasonable-employer test applied; the Court found the allegations serious and the dismissal justified.

p. 8
02

Fairness of the disciplinary process

Holding

The Respondent accorded the Claimant a fair hearing; the Claimant squandered his chance to defend himself

Reasoning

The Claimant was issued a show cause letter, failed to respond, was invited to a disciplinary hearing, sought postponement which was granted, then failed to attend the rescheduled hearing and refused to acknowledge the re-issued notice. The employer accommodated his requests and proceeded in his absence.

p. 8
03

Standard of proof in employment claims involving parallel criminal charges

Holding

Civil standard of balance of probabilities applies, not the criminal standard

Reasoning

The Court distinguished between the ongoing criminal prosecution and the civil employment claim, holding that it is not concerned with whether the accusations could sustain a conviction but whether they were reasonably believed and justified dismissal on a balance of probabilities.

p. 8

Legal principles established

#
  • In a claim for unfair termination of employment the onus of proving the validity of the reason for termination or dismissal lies with the employer.
  • Where accusations against an employee are also subject to criminal prosecution, the civil test is the balance of probabilities, not proof beyond reasonable doubt.

Court orders

#
  1. 1.The claim is dismissed with costs
  2. 2.It is so ordered

The bench

#

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

AN
majority

Wrote the judgment

Jurisdiction invoked
First-instance claim for unfair termination under the Employment Act (Court's employment jurisdiction)

Relief refused

#

Claim for unfair termination/unlawful summary dismissal

Allegations were serious and the Claimant failed to respond to the show cause letter or attend the disciplinary hearing

p. 8

Costs

The claim is dismissed with costs (costs to the Respondent)

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.

The court therefore finds and holds that the claim has no merit and is hereby dismissed with costs.
p. 8Final orders – dismissal of the claim
In a claim for unfair termination of employment the onus of proving the validity of the reason for termination or dismissal lies with the employer.
p. 7Burden of proof in unfair termination claims
The claim before the Court is a civil claim and the standard of proof is on a balance of probabilities and not beyond reasonable doubt as in criminal trial.
p. 8Standard of proof
It is so ordered.
p. 8Closing order

Issues in the judgment

#
minor

Respondent's pleading dates the invitation to disciplinary hearing inconsistently: hearing scheduled for 3 April 2019 'vide a Notice dated October 27, 2019', which post-dates the hearing and the dismissal

minor

Claimant's evidence dates the disciplinary hearing notice as 'dated March 27, 2017', inconsistent with the pleaded date of March 27, 2019

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Yarrow v National Bank of Kenya Limited (Cause 50 of 2020) [2023] KEELRC 1410 (KLR)", Case Analysis (2023). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1410/eng@2023-06-09

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