Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCDismissedNot stated in the excerpt

Kingdom Bank Limited v Kirui (Appeal E003 of 2023) [2025] KEELRC 1201 (KLR)

Employment and Labour Relations Court
30 April 2025
1,149 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

#

A Kenyan bank lost its appeal because it showed the court paperwork about its dismissal process, but no actual evidence that the employee did anything wrong.

What this practically means

#

Executive summary

#
The Respondent was employed by the Appellant Bank as a Trade Support Officer on 24th August 2018 and summarily dismissed on 2nd October 2020 after a disciplinary process. He sued for unfair termination and the Trial Court, by judgment dated 7th February 2023, found the termination unfair and awarded him the equivalent of 12 months' salary (Kshs. 756,000) with costs. The Appellant appealed on nine grounds, contending principally that the Respondent had a fair hearing and a right of appeal, that valid grounds existed for the dismissal under Section 44(4)(c) of the Employment Act, and that the Trial Court failed to address its Counterclaim. The appeal was canvassed by written submissions on the record. The Court upheld the Trial Court's findings. Procedurally, termination was fair, but substantively the Appellant failed to establish valid reason: it did not exhibit the minutes of the disciplinary hearing, and the seven documents it filed related mainly to procedural steps, not substantiation of the alleged offences. The Court applied Naima Khamis v. Oxford University Press E.A. Limited, holding that reasons justifying termination must be supported by evidence available at the time of termination. The right of appeal granted to the employee went only to procedure, not to substantiation. On the Counterclaim, the Appellant had sold the Respondent's car without accounting for the proceeds. The appeal was dismissed in its entirety, with no order as to costs.

Questions the Court framed

#

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

  1. 1.Whether the Trial Court erred in finding the Respondent was not granted a fair hearing despite a right of appeal being accorded
  2. 2.Whether the Respondent was dismissed on valid ground, having neglected to perform his work properly
  3. 3.Whether the Trial Court erred in taking into account mitigating circumstances
  4. 4.Whether the Trial Court failed to dismiss the Claim based on the evidence against the Respondent
  5. 5.Whether the Trial Court disregarded Section 44(4)(c) of the Employment Act
  6. 6.Whether the Trial Court erred in not addressing the Counterclaim and in awarding costs to the Respondent

Key legal issues

#
01

Substantiation of valid reason for termination

Holding

The Trial Court correctly found that valid reason was not established in the absence of minutes of the disciplinary hearing showing the evidence availed.

Reasoning

The seven documents exhibited by the Appellant related mainly to procedural requirements - employment letter, suspension, investigations, show-cause, responses, hearing invitation and termination letter. None substantiated the alleged offences. Without minutes showing charges, witnesses, evidence and the decision, the Trial Court could not be faulted in finding the allegations unsubstantiated.

p. 3
02

Procedural fairness versus substantiation

Holding

Procedural compliance, including a right of appeal, does not establish valid reason for termination.

Reasoning

The Trial Court found the Appellant made effort to comply procedurally with the Employment Act; termination was procedurally fair but substantively unfair. The right of appeal only confirms procedural rights and cannot cure the absence of evidence substantiating the allegations.

p. 3
03

Burden of proving gross misconduct under Section 44(4)(c) of the Employment Act

Holding

The employer must establish the employment offence; the court will not accept bare pleadings and submissions.

Reasoning

It was for the Appellant to establish that the Respondent committed an employment offence under Section 44(4)(c). The Appellant did not do so, and the Trial Court was not bound to accept the assertion of negligence and gross misconduct on bare pleading and submission.

p. 3
04

The Counterclaim

Holding

The Trial Court properly addressed the Counterclaim; the Appellant sold the Respondent's car without accounting for the proceeds, and costs properly went to the successful litigant.

Reasoning

The Appellant repossessed and sold the Respondent's car, subject of the Counterclaim, without exhibiting statements of account showing what was recovered and what was outstanding. The Trial Court's award of costs to a successful litigant disclosed no error.

p. 3

Legal principles established

#
  • Substantiation of termination, especially where an employer alleges participation in banking fraud, requires that evidence of wrongdoing be availed at the disciplinary hearing.
  • Grant of a right of appeal after dismissal goes only to procedural fairness, not to substantiation of valid reasons for termination.
  • It is for the employer, through evidence, to establish wilful neglect and improper performance of duty; bare pleading and submission do not discharge that burden.

Court orders

#
  1. 1.The Appeal lacks merit and is declined.
  2. 2.No order on the costs.

The bench

#

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

majority

Wrote the judgment

On appeal from
Trial Court (ELRC, first instance)
Not stated
Jurisdiction invoked
Appellate jurisdiction of the Employment and Labour Relations Court over an appeal from the Trial Court (specific provision not stated in the judgment)

Relief refused

#

Appellant's prayer to set aside the Trial Court Judgment with costs to the Appellant

The Appeal lacked merit; the Trial Court correctly found termination was not substantiated

p. 3

Costs

No order on the 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.

The Appeal lacks merit and is declined.
p. 3Disposition
No order on the costs.
p. 3Costs
Substantiation, especially in a case where the Employer alleges that an Employee participated in banking fraud, requires that evidence of wrongdoing is availed at the disciplinary hearing.
p. 2Substantiation of termination
The grant of a right of appeal, would only go into establishing that the Appellant granted the Respondent full procedural rights; it would not show that valid reasons were demonstrated by the Respondent, to justify termination.
p. 3Procedural fairness does not establish valid reason
It was for the Appellant, through evidence, to establish wilful neglect and improper performance of duty, on the part of the Respondent.
p. 3Burden of proof on employer

Issues in the judgment

#
minor

Judgment does not state the case number, neutral citation or the parties' actual names, referring to them only as 'the Appellant Bank' and 'the Respondent'.

minor

The Trial Court is described as having found termination 'procedurally fair' at one point, yet the appeal ground asserts the Trial Court found no fair hearing; the appellate court distinguishes procedure from substantiation.

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Kingdom Bank Limited v Kirui (Appeal E003 of 2023) [2025] KEELRC 1201 (KLR)", Case Analysis (2025). Not stated in the excerpt. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1201/eng@2025-04-30

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