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ELRCDismissedNot stated in the judgment

Njoroge v SBM Bank Kenya Limited (Cause E347 of 2021) [2025] KEELRC 180 (KLR)

Employment and Labour Relations Court
31 January 2025
4,248 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~17 min to read original · ~4 min brief

The bottom line

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A Kenyan court upheld a bank's dismissal of an IT officer over cyber-fraud, ruling the employer followed fair procedure and had valid reasons for termination.

What this practically means

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Executive summary

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The Claimant, employed by the Respondent Bank on 18th August 2018 as a Senior IT Officer managing the 'mfukoni' mobile banking application, was placed on compulsory leave in July 2020 following suspected cyber-fraud. Following a forensic audit linking her computer to the introduction of malware and losses of about Kshs. 9.5 million across three incidents, she was issued a show-cause letter, subjected to a disciplinary hearing on 15th December 2020, and her contract was terminated by letter dated 21st January 2021. Her appeal was unsuccessful. She sued for declarations, notice pay, service pay, 12 months' compensation, general damages of Kshs. 5,000,000, a certificate of service, pension and interest, alleging unfair and unlawful termination contrary to the Employment Act, the Fair Administrative Action framework and natural justice. The Respondent countered that procedure and reasons were valid and counterclaimed for an unpaid personal loan of Kshs. 680,454 plus interest and the cost of an unreturned IPhone. The Court found the disciplinary procedure conformed to Sections 41 and 45 of the Employment Act, rejecting her complaint about being denied her chosen companion, and found valid reasons for termination under Sections 43 and 45, holding the employer need only genuinely believe the reasons existed. The Claim was dismissed; the undisputed Counterclaim was allowed as prayed. The Claimant was granted liberty to collect her certificate of service and terminal dues. No order on costs was made on either the Claim or the Counterclaim.

Questions the Court framed

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

  1. 1.Whether the termination procedure was fair, in accordance with Sections 41 and 45 of the Employment Act
  2. 2.Whether the Respondent had valid reason(s) under Sections 43 and 45 of the Employment Act
  3. 3.Whether the Respondent has established its Counterclaim
  4. 4.Whether the Parties merit their respective prayers

Key legal issues

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01

Whether the disciplinary and termination procedure met Sections 41 and 45 of the Employment Act

Holding

The procedure was fair: the Claimant was informed of allegations, given investigations, show-cause letter, hearing, and appeal; her claim of denial of her chosen companion was not borne out by the minutes

Reasoning

The Claimant recorded a statement under investigation, replied in detail to the show-cause letter, attended a hearing accompanied by a colleague whose attendance she confirmed at the outset without protest, and the minutes were signed by her. She was advised of a right of appeal, exercised it, and conceded the appeal decision was communicated. Compulsory leave extensions did not breach policy since she continued on full pay.

p. 7
02

Whether the Respondent had valid reason to terminate under Sections 43 and 45

Holding

Yes - the Claimant's negligent handling of her computer and associations with persons implicated in the cyber-fraud gave sound, defensible and well-founded reasons

Reasoning

The Claimant granted unauthorized remote access to colleagues, kept a wildcard/root password contrary to password standards, left her computer unattended and unlocked allowing malware infection, and was associated with persons connected to the fraud, including advising Sharon Anyango on opening the account used to channel stolen funds. Applying the genuine-belief standard, the Court found sufficient reason established.

p. 9
03

Whether the Counterclaim was established

Holding

The Counterclaim was allowed - the unpaid loan balance and the unreturned IPhone were undisputed

Reasoning

No Response to the Counterclaim was found on record, and in her evidence the Claimant did not dispute the loan amount owed at termination or that she was issued an IPhone she did not return. The Counterclaim was therefore allowed as prayed.

p. 9

Legal principles established

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  • The standard of proof of reason for unfair termination under Section 43 of the Employment Act is not proof beyond reasonable doubt; the employer need only show it genuinely believed the reason existed at the time of termination, and a valid reason is one which is sound, defensible and well-founded

Court orders

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  1. 1.The Claim is dismissed with no order on the costs
  2. 2.The Counterclaim is allowed as prayed, but with no order on the costs
  3. 3.The Claimant is at liberty to collect her certificate of service and terminal dues, as offered by the Respondent, in the letter of termination

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Employment Act 2007 (Sections 41, 43, 44, 45) - first-instance Employment and Labour Relations Court claim

Relief refused

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Declaration that termination was malicious, unfair and unlawful; notice pay; service pay; 12 months' compensation; general damages of Kshs. 5,000,000; pension; interest

Procedure conformed to the Respondent's Human Resource Policy and Sections 41 and 45 of the Employment Act, and the reasons for termination were valid under Sections 43 and 45

p. 9

Costs of the Claim and the Counterclaim

The Court made no order on costs for both the Claim and the Counterclaim

p. 9

Costs

No order on the costs of the Claim and no order on the costs of the Counterclaim

Quotable passages

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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 is ordered: a. The Claim is dismissed with no order on the costs.
p. 9final orders - dismissal of the claim
The Counterclaim is allowed as prayed, but with no order on the costs.
p. 9final orders - counterclaim allowed
The Claimant is at liberty to collect her certificate of service and terminal dues, as ofiered by the Respondent, in the letter of termination.
p. 9final orders - certificate of service and terminal dues
A valid reason is one which is sound, defensible and well-founded, and not fanciful, spiteful or prejudiced
p. 8standard of proof / valid reason under Section 43
She was cast as an insider, assisting fellow insiders and outsiders, to rob her bank using a computer, instead of a gun.
p. 8Court's assessment of the Claimant's role in the fraud

Issues in the judgment

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minor

Internal inconsistency in dates: show-cause letter stated in the record as dated 17th November 2020, but the Court's findings refer to it as '17th November 2017'

minor

Internal inconsistency in the effective date of termination: the termination letter erroneously stated 22nd January 2020, which the Court itself noted could not be correct

minor

Discrepancy in the total fraud loss figure: the Statement of Response pleads a possible loss of Kshs. 11,491,914, while the evidence and findings put the loss at about Kshs. 9.5 million

minor

Discrepancy on the date compulsory leave commenced: the record states 13th July 2020, but the Court's findings state 17th August 2020

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, "Njoroge v SBM Bank Kenya Limited (Cause E347 of 2021) [2025] KEELRC 180 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/180/eng@2025-01-31

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