Kingdom Bank Limited v Kirui (Appeal E003 of 2023) [2025] KEELRC 1201 (KLR)
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
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Trial Court erred in finding the Respondent was not granted a fair hearing despite a right of appeal being accorded
- 2.Whether the Respondent was dismissed on valid ground, having neglected to perform his work properly
- 3.Whether the Trial Court erred in taking into account mitigating circumstances
- 4.Whether the Trial Court failed to dismiss the Claim based on the evidence against the Respondent
- 5.Whether the Trial Court disregarded Section 44(4)(c) of the Employment Act
- 6.Whether the Trial Court erred in not addressing the Counterclaim and in awarding costs to the Respondent
Key legal issues
#Substantiation of valid reason for termination
The Trial Court correctly found that valid reason was not established in the absence of minutes of the disciplinary hearing showing the evidence availed.
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.
Procedural fairness versus substantiation
Procedural compliance, including a right of appeal, does not establish valid reason for termination.
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.
Burden of proving gross misconduct under Section 44(4)(c) of the Employment Act
The employer must establish the employment offence; the court will not accept bare pleadings and submissions.
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.
The Counterclaim
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.
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.
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.The Appeal lacks merit and is declined.
- 2.No order on the costs.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
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
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.
No order on the costs.
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.
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.
It was for the Appellant, through evidence, to establish wilful neglect and improper performance of duty, on the part of the Respondent.
Issues in the judgment
#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'.
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.