King’oku v ABSA Bank Kenya PLC (Cause E647 of 2021) [2024] KEELRC 2529 (KLR)
The bottom line
#Kenya's Employment Court upheld a bank employee's dismissal, confirming employers win when disciplinary process is fair and reasons are proven by text message and documentary evidence.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether compensation for unfair and unlawful termination is due
- 2.Whether the claimant is entitled to service pay
- 3.Whether the claimant is entitled to damages for discrimination
- 4.Whether interest on the outstanding loan should be at prevailing staff rates until payment in full
- 5.Whether the claimant is entitled to bonus payment for the year 2021
- 6.Whether the respondent should desist from issuing adverse reports against the claimant to prospective employers and clear the claimant's name unconditionally
Key legal issues
#Whether the termination was procedurally fair under section 41 and 45 of the Employment Act
The claimant was notified of the allegations, accorded a hearing and an appeal, and complied with sections 41 and 45; the refusal of cross-examination at appeal was proper since the appeal was not a re-hearing
The claimant received a show cause notice, was suspended on full pay with an express invitation to access documents and witnesses, attended a disciplinary hearing with a representative, was terminated, and appealed with a representative. The request to cross-examine witnesses at appeal was an afterthought since the appeal was a review based on material at the initial hearing. The termination letter issued promptly after the hearing, which did not amount to predetermination.
Whether valid reasons for termination existed under section 43
On a balance of probability the allegations of soliciting commissions from Winnie and receiving Kshs. 8,000 from Maina were established
Text messages showed a lunch promise tied to Winnie's commissions of about Kshs. 200,000, with Winnie indicating she would pay later. The claimant failed to produce MPESA evidence of contributions or the alleged mother-in-law's medical bills. Both allegations were therefore established on a balance of probability and the reasons for termination were valid and existed at the time of termination.
Whether discrimination was established
Not established for want of a comparator
The claimant alleged other Relationship Managers were given lesser punishment but provided no evidence of graduated findings. Designating Winnie as a whistle-blower was within the respondent's prerogative. No basis was shown for compensation for discrimination.
Whether preferential staff interest rates on loans should continue after termination
The claim is moot and unjustified since loan contracts provided that preferential rates revert to market rates upon separation
The claimant confirmed having repaid the outstanding loans, rendering the issue moot. He also signed loan contracts acknowledging that preferential rates would revert to market rates upon separation, so the claim was unjustified.
Legal principles established
#- An employer must be truthful in referral reports; a soft-landing agreement is required to defeat adverse referral in cases of termination that are not unfair
- An administrative appeal in employment disciplinary cases is a review, not a re-hearing; new evidence may only be introduced if it was not available or could not with due diligence be availed at the initial hearing
Court orders
#- 1.Judgment entered for the respondent against the claimant
- 2.Each party to bear own costs of the suit
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (first-instance employment claim)
Relief refused
#Compensation for unfair and unlawful termination
Termination was procedurally and substantively fair; valid reasons existed under section 43 of the Employment Act
Service pay
No contractual, policy or statutory basis established
Damages for discrimination
No comparator established; no evidence of graduated findings against other managers
Interest on outstanding loan at prevailing staff rates
Moot since loans were repaid; unjustified because loan contracts provided rates revert to market rates upon separation
Bonus payment for the year 2021
Policy removed employees under disciplinary action from bonus eligibility; bonus is a discretionary benefit
Order that respondent desist from adverse reports and clear claimant's name unconditionally
Employer's duty is to provide honest referrals; a tree lies where it falls
Costs
Each party to bear own costs of the suit
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.
In conclusion judgment is hereby entered for the respondent against the claimant with orders each party to bear own costs of the suit.
The Court finds that the claimant was notified the case that confronted him and he was accorded a fair procedure to exculpate through the disciplinary hearing panel and the administrative appeal stage.
to defeat adverse referral in cases of terminations that are not unfair, the employer and employee will need to enter into such soft landing agreement and, failing, the employer is required to be truthful in making the referral report.
It is that a tree lies where it falls. The duty of employers is to provide honest referrals to whoever requires the same.
bonus being an employer’s discretionary benefit, the prayer will fail.
Issues in the judgment
#Dates of text messages in the judgment appear internally inconsistent/typographical (24.07.2024 and reply 25.11.2025) though the events concerned 2020-2021
Termination letter dated 10.05.2021 described as issued after the disciplinary hearing of 05.05.2021, yet the claimant pleaded and the judgment elsewhere records the job advertised on 10.05.2021 and the letter as issuing on the same day as the signed minutes; the judgment resolves this but the chronology in the pleadings is inconsistent
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "King’oku v ABSA Bank Kenya PLC (Cause E647 of 2021) [2024] KEELRC 2529 (KLR)", Case Analysis (2024). Not stated in the extract (Memorandum of Claim dated 06.08.2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2529/eng@2024-10-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.