Musumba v NCBA Bank Kenya Plc (Cause E030 of 2024) [2025] KEELRC 634 (KLR)
The bottom line
#A Kenyan court upheld NCBA Bank's dismissal of an employee, ruling that failing to properly verify transactions before authorising them was negligence that justified termination.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Respondent has proved that there was a valid and fair reason to terminate the employment of the Claimant
- 2.Whether the Claimant was taken through a fair process prior to termination from employment
- 3.Whether the Claimant has made a case for discrimination
- 4.Is the Claimant entitled to the reliefs sought?
Key legal issues
#Whether there was a valid and fair reason for termination
Yes - the Claimant was negligent in authorizing reactivation of dormant accounts and unauthorized debits without verifying customer instructions or existence of loans, giving the Respondent a valid reason under Section 45(2)(a) and (b)
The Claimant did not deny authorizing the transactions. As checker in the maker-checker control, he was required to act as a second eye and verify that transactions met basic requirements. He conceded he did not confirm whether customers had existing loans, and his own investigation statements confirmed the debits did not settle loan arrears. The Policy on Handling of Inactive Accounts, whose scope covers 'all points of customer account activation input', applied to his environment. His failure to exercise diligence exposed the bank to financial risk, constituting negligence justifying termination.
Whether the process prior to termination was fair under Section 41 of the Employment Act
Yes - the Respondent complied with the minimum requirements of Section 41; the Claimant was informed of the allegations, heard, and his procedural complaints were afterthoughts
Though the Notice to Show Cause did not specify the transactions, they were disclosed during investigations and in the 8th November 2023 invitation to the hearing. The Claimant confirmed at the hearing he was comfortable proceeding without a representative and signed the minutes. The variance in the number of charges did not impair the hearing since he knew the allegations in advance. He also had access to the physical copy of the disciplinary proceedings, so absence of a recording did not impair his appeal.
Whether the Claimant proved discrimination
No - the claim was not substantiated; no evidence showed the other authorizers committed the same infractions and escaped sanction
Applying Barclays Bank of Kenya Ltd & another v Gladys Muthoni, a discrimination claim must be supported by evidence. The Claimant adduced no admissible evidence that the two colleagues who received Notices to Show Cause were ultimately not sanctioned, nor that their conduct was of the same gravity. A mere assertion that others 'got a green light' without more cannot sustain a claim of differential treatment without reasonable distinction.
Whether the Claimant is entitled to the reliefs sought
No - having found fair reason and fair process and no discrimination, all reliefs fail and the Claim is dismissed
Compensatory damages under Section 49 cannot be sustained where termination was for valid reason and through fair process. Reinstatement similarly fails. Damages for discrimination do not lie absent proof of discrimination. Consequently the entire Claim, including the injunction on the staff mortgage and loan facility, was dismissed with each party bearing its own costs.
Legal principles established
#- Four elements must be discernible for a disciplinary procedure under Section 41 of the Employment Act to pass muster: explanation of grounds in a language understood by the employee; the reason for contemplated termination; entitlement to the presence of another employee of choice; and hearing and considering any representations
- A claim of discrimination is a serious claim that must be supported by evidence
- In a maker-checker system, the checker/authorizer acts as a second eye and must undertake further verification before authorizing a transaction
- An employer bears the burden under Section 45(2)(c) of the Employment Act to prove that termination followed a fair process
Court orders
#- 1.The Claim is dismissed in its entirety
- 2.Each party shall bear its own costs
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 (Sections 41 and 45 invoked); Constitution Articles 27, 48, 159(2)(d) referenced
Relief refused
#Declaration that termination was unfair and amounted to unfair labour practices
Termination was found to be for a valid and fair reason and conducted through a fair process under Sections 41 and 45 of the Employment Act
Damages for unlawful and unfair termination of employment
Compensatory damages cannot be sustained where termination was fair
Reinstatement with backpay (alternative relief)
Flops in light of the finding that termination was fair and lawful
Damages for discrimination and unfair labour practices
Discrimination claim not substantiated by evidence
Permanent injunction restraining conversion of staff mortgage and staff loan facility to commercial rates
Not addressed as the entire Claim was dismissed
Costs
Each party shall bear its own costs
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 the final analysis, the Claim is dismissed in its entirety with an order that each party shall bear its own costs.
the Court finds that the Respondent has proved on a balance of probabilities that the Claimant was negligent in the performance of his duties.
Applying the above decision to the instant case, I am satisfied that the Respondent complied with the minimum requirements stipulated under Section 41 of the Employment Act.
In the circumstances, the Court finds that the claim for discrimination has not been substantiated.
I am led to conclude that the termination of the Claimant was neither unfair nor unlawful.
the system was a control tool hence the checker who was the Claimant in this case, was to act as a second eye and undertake further verification to confirm that the transaction was regular and met all the basic requirements prior to authorizing it.
Issues in the judgment
#Internal date inconsistency: the second charge is alleged to have occurred between 14th December 2023 and 17th July 2023, yet the Claimant was terminated on 21st December 2023 and the show cause notice issued 28th July 2023; the period as stated runs beyond the show cause date
Date inconsistency in the investigation interview: the judgment refers to an interview conducted on '21st August 2021' whereas the surrounding chronology is 2023
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Musumba v NCBA Bank Kenya Plc (Cause E030 of 2024) [2025] KEELRC 634 (KLR)", Case Analysis (2025). Not stated in judgment (ELRC Claim). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/634/eng@2025-02-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.