Kuria v Cooperative Bank of Kenya Limited (Employment and Labour Relations Cause E301 of 2022) [2025] KEELRC 470 (KLR)
The bottom line
#Kenya's Employment Court confirmed an employer may fire an employee facing fraud charges without waiting for the criminal case, and dismissed all the employee's claims.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Was the termination of the Claimant's employment unfair?
- 2.Is the Claimant entitled to the reliefs sought?
- 3.Is the Respondent's Counterclaim merited?
- 4.Who should bear the costs of the claim and counterclaim?
Key legal issues
#Procedural fairness of the termination under section 41 of the Employment Act
The termination was procedurally fair; notification, hearing and consideration were all present
The court found the Claimant was notified through show-cause letters of the grounds, invited by letter dated 15th May 2019 to a disciplinary hearing with rights to tender documents and be accompanied, made representations at the hearing, and the Panel considered them before recommending termination. All statutory ingredients of section 41 were satisfied, and the claim of denial of accompaniment was contradicted by evidence that the Claimant said he was comfortable proceeding without representation.
Effect of Clause A5 of the CBA - suspension pending criminal trial
The CBA did not oblige the employer to await the outcome of the criminal case before disciplining or terminating
Clause A5[c] provided for a 90-day suspension during pending prosecution for moral turpitude, extendable at the employer's discretion. The court held that after the 90 days the employer could elect to await the criminal outcome or commence internal proceedings. The employer chose the latter route, which the clause permitted; therefore the Claimant's complaint of breach of the CBA failed.
Substantive justification for the termination
The termination was substantively justified on grounds of moral turpitude
The infraction was not the mere fact of criminal charges but gross misconduct amounting to moral turpitude - suspected fraud against the Respondent's Sacco customers and dishonesty in a loan application. The CBA broadly defines moral turpitude to include offences against third parties. Given the banking sector's need for integrity and trust, the conduct breached the implied duty of trust and confidence, providing valid reasons under sections 43 and 45 of the Employment Act.
Overtime claim
Overtime claim failed for want of proof
Although an overtime claim is independent of unfair termination and can succeed even where the termination claim fails, the Claimant produced no evidence of when the overtime was worked; the figures were merely asserted in pleadings and the witness statement without substantiation, following Rogoli Ole Manadiegi v General Cargo Services Limited.
Respondent's counterclaim on outstanding loans
Counterclaim succeeded; the Claimant admitted the debt
The Claimant did not file a defence to the counterclaim, leaving it admitted, and admitted in cross-examination that he owed KShs. 3,032,798.26 in outstanding loans. Judgment was entered for that sum with interest at commercial bank rates.
Legal principles established
#- Termination must be both procedurally fair and substantively justified to pass the fairness test
- An employer may proceed with internal disciplinary proceedings pending conclusion of an employee's criminal case where the CBA suspension period allows extension or lapse at the employer's discretion
- Employee misconduct outside the workplace can ground dismissal if it significantly and negatively impacts the employment relationship and the employer's business
- A collective agreement binds the parties and its terms are incorporated into the contracts of employment of covered employees
Court orders
#- 1.The Claimant's claim is dismissed with costs
- 2.Judgment is entered in favour of the Respondent on its Counterclaim in the sum of KShs. 3,032,798.26, with interest at commercial bank rates
- 3.Costs of the Counterclaim shall be in favour of the Respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- First-instance employment and labour relations dispute (Employment Act, 2007; Employment and Labour Relations Court jurisdiction)
Relief refused
#Declaration that accessing and extracting the Claimant's bank statements violated his right to privacy and the Data Protection Act
The unfair termination claim failed; the privacy/data protection declaration was tied to the failed claim and no finding was made in the Claimant's favour
Damages for unlawful termination (KES 1,340,553.84) and loss of Trustee/Director allowances (KES 645,000)
Termination was held procedurally and substantively fair
Overtime compensation (KShs. 1,324,805.25)
No evidence demonstrating when the overtime was expended; figures were not proved
Costs
The Claimant's claim dismissed with costs; costs of the Counterclaim in favour of 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 Claimant's claim herein is hereby dismissed with costs.
Judgment is entered in favour of the Respondent on its Counterclaim in the sum of KShs. 3,032, 798.26, with interest at commercial bank rates.
For a termination of employment to pass the fairness test, it must be shown that there was not only substantive justification for the termination but also procedural fairness.
an employee's misconduct outside the workplace can be a basis for institution of disciplinary process against an employee and eventually action such as dismissal, if the action significantly and negatively impacts the employment relationship and the employer's business.
The absence of any of or all these components shall render the termination procedurally unfair.
Issues in the judgment
#Heading error in the issues analysis: the heading of paragraph 71 reads 'Was the termination of the Claimant's Counterclaim unfair?' although the issue considered was the fairness of the Claimant's termination
The heading to paragraph 70 lists four issues, but the first heading in the analysis mislabels the first issue as relating to the Counterclaim
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.
- Lorna v Cofftea Limited & another (Environment and Land Case E438 of 2025) [2026] KEMC 810 (KLR)[2026] KEMC 810 (KLR)27 Aug 2026
Cite this brief
#Cite this brief
Caselaw, "Kuria v Cooperative Bank of Kenya Limited (Employment and Labour Relations Cause E301 of 2022) [2025] KEELRC 470 (KLR)", Case Analysis (2025). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/470/eng@2025-02-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.