https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2110

Chebet v Equity Bank Kenya Ltd (Cause E030 of 2024) [2026] KEELRC 2110 (KLR) (18 June 2026) (Judgment) Neutral citation: [2026] KEELRC 2110 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Eldoret Cause E030 of 2024 MA Onyango, J June 18, 2026 Between Jennifer Jepkoech Chebet Claimant and Equity Bank Kenya Ltd Respondent Judgment 1.Jennifer Jepkoech Chebet was, until 8th July, 2021, an employee of the Respondent, a commercial Bank registered and operating in Kenya. She was employed by the Respondent on 2nd April, 2013 as a master trainer and worked in several positions, the last one being payments supervisor at the Respondent’s Kapsowar branch. 2.The reason for termination of her employment was that the Claimant absented herself from duty on 12th April and 12th May, 2021. 3.The Claimant appealed against the termination but the appeal was not successful as the decision to dismiss her was upheld. 4.It is the Claimant’s averment that the termination was unfair for reasons that:a.There was no notice or warning prior to the termination.b.Termination breached rules of natural justice and the Employment Act 2007.c.Termination was unfair for want of valid reasons and fair procedured.Failing to furnish the Claimant with valid reasons for his termination.e.The decision was unjustifiably harsh and unfair all factors consideredf.The decision to terminate the claimant's employment was pre-determined and the purported hearing was merely a curtain dressing.g.Discriminating against the claimant.h.No proper investigation was carried out as the respondent had a pre-determined outcome 5.The Claimant avers that she is entitled to the following remedies:a.Leave allowancesb.Damages for unlawful termination; andc.Three-month salary in lieu of notice. - Ksh 110,400 x 3 = (Kshs. 331,200)d.8 years’ Service paye.Daily Rate x 28 days in a year x 8 years worked Kshs.110,400 x 28 days x 8 divided by 24 = Kshs.1,030,400/=f.12 months’ salary as compensation for unfair and Unlawful termination of employment as per sec 49(C) of the employment act = Ksh. 1,324,800/=Total = Ksh. 2,686,400/= 6.The Claimant prays for judgement against the Respondent as follows:a.A declaration that the reasons stated in the letter of termination do not constitute proper ground for termination.b.The Respondent to withdraw the letter of termination and issue the Claimant a letter clearing her of any wrongdoing.c.That the summary dismissal be declared unlawful and unfair.d.Damages for wrongful dismissal.e.Compensation for unlawful termination as per paragraph 7 of the statement of claim.f.Leave allowances.g.Interest from the date of the filing of the Claim.h.Costs of the Claim; andi.Any other order the Court may find it fit to award. 7.The Respondent filed an Amended Response to Statement of Claim dated 8th November, 2024 in which it admits that the Claimant was employed by the Respondent but denies all the averments of unfair termination of her employment. 8.The Respondent avers that the termination of the Claimant was procedurally fair and within the dictates of the Constitution, the Employment Act, and the Respondent’s Disciplinary Procedure. That the Claimant was informed of the charges levelled against her, given a reasonable opportunity to respond to the charges and heard by an impartial disciplinary committee. 9.The Respondent further avers that on numerous occasions the Claimant absented herself from duty without any lawful justification and was on several occasions taken through disciplinary hearings and warned in writing for absenting herself from duty without permission as follows:i.On or about 15th May 2018,the Respondent wrote a show cause letter to the claimant for absenting herself from duty without permission, to which the Claimant responded to.ii.On or about 21st June 2018, the Respondent invited the Claimant to attend a disciplinary hearing which proceeded on 27th June 2018 on the claimant's actions of absenting herself from duty without explanation or permission.iii.About a year later, on another occasion, on or about 1st October 2019, the Respondent yet again wrote to the Claimant to show cause for absenting herself from duty without permission on 24th August 2019.iv.On 7th October 2019 the Claimant at fended a disciplinary hearing where she was heard yet again on absenting herself from duty without permission leading to a first warning letter dated 9th October 2019. 10.The Respondent prays that the Claim be dismissed with costs. 11.At the hearing of the Claim the Claimant testified on her behalf and adopted her witness statement and documents she filed in court. The Respondents called Michelle Bakhita Mark who testified on its behalf and produced the documents filed by the Respondent. The parties thereafter filed and exchanged submissions. Evidence 12.The Claimant testified that she was employed by the Respondent on 2nd April, 2013 as a Master Trainer. She was later transferred to Payments Division and Agency where she worked until she left employment. At the time of termination her basic salary was Kshs. 95,000 with hardship allowance of Kshs. 15,000. Her gross salary was thus Kshs. 110,000. 13.The Claimant testified that she left the Bank on 8th July 2021 when she received a letter of termination. That the termination was preceded by a show cause letter dated 16th June, 2021 which she responded to the same day. She attended a disciplinary hearing on 3rd July, 2021. 14.The Claimant states that according to the Bank’s Policy she was liable for dismissal only if she absented herself for 7 days. She testified that in her case her employment was terminated for being absent for one day and then another one day. 15.She testified that she communicated to the Bank that she was going to be late filed the date in the ERP as a day off after she arrived in the office on both 12th April and 12th May, 2021. She further testified that she explained and filled leave forms the same day. 16.The Claimant testified that her appeal against the termination dated 22nd July 2021 was rejected by a decision communicated to her in the Respondent’s letter dated 26th August, 2021. 17.The Claimant testified that there was no justification for the termination based on the Bank Policy and that is why she came to court. She urged the court to grant her prayers. 18.Under cross examination the Claimant admitted that she received the warning letter dated 9th October, 2019 which made reference to her absence without permission on 24th August, 2019. She testified that the disciplinary hearing of 2018 was on a different issue which she could not recall. 19.The Claimant testified that on 12th April 2021 she was sorting out a water bill and on 12th May, 2021she was taking her child to school. That on both occasions she communicated to her Team Leader on SMS but did not send an email or letter. 20.She testified that her appeal was dismissed without her being heard on the appeal. 21.Under re-examination the Claimant testified that her Team Leader was not present during the disciplinary hearing. She further testified that under the Bank Policy a warning letter is valid for 12 months only. 22.The Respondent called Michelle Bakhita Mark, its Employee Relations Manager, who testified as RW1. She adopted her witness statement dated 20th June, 2025 and adopted the documents filed by the Respondent as part of her evidence. 23.RW1 testified that prior to terminating the Claimant’s employment she had received several warnings with regard to absenteeism without permission on 1st October, 2018, and 9th October, 2019. That she received a show cause letter on 16th June, 2021. 24.She testified that under the Bank’s policy, absenteeism is gross misconduct. That all employees are taken through induction of 2 weeks during which they are taken through the bank policies including consequence management policy. 25.She testified that the Claimant appealed against her termination which was considered according to the Bank policy to the effect that appeals are only heard if there is additional evidence. That in the Claimant’s case there was no new evidence. 26.Under cross examination RW1 stated that she did not participate in the disciplinary hearing of the Claimant and did not have records of the disciplinary hearing. She stated she could not tell the composition of the disciplinary panel for the Claimant. 27.She testified that the Claimant was in the habit of absenting herself without permission. She stated consideration was given to the Claimant’s previous disciplinary record during the hearing. 28.She stated she could not confirm if the Claimant filled an off day in ERP for the days she was absent as she did not have records of ERP system in court. She stated that she was not aware that the Claimant’s request for ERP system records was declined. 29.She testified that taking a child to school is not an unreasonable request for absence. She testified that the Claimant had not exhausted her leave days. 30.In re-examination RW1 stated that the Claimant did not state in her witness statement that she applied for leave. 31.She further stated that warnings remained active for 12 months but the records were retained in the employee’s file and may be referred to for the purpose of making decisions. Claimant’s Submissions 32.In her submissions the Claimant states that she was not accorded a fair and valid reason for dismissal. That on 12th April, 2021 she went to sort out a water bill which took up to 3 pm. That she explained the issue to her Team Leader Timothy. That on 12th May, 2021 she had taken her child to school for admission expecting to finish early and go to work but the process took longer than she had expected. Further, that it rained heavily for the whole day. That on both occasions she filed for off duty in the ERP system, a fact that was not disputed by the Respondent. 33.According to the Claimant she had sufficiently explained her absence and the decision to terminate her employment was predetermined, that the disciplinary hearing was, in her words, ‘a curtain dressing’. 34.The Claimant submitted that the Respondent’ averment that she was a habitual absentee was unfounded as she was absent on only 2 occasions due to genuine emergencies. 35.The Claimant relied on the decision in Walter Ogal Anuro v Teachers Service Commission where the court emphasized that an employer must prove valid reason and demonstrate due process. Respondent’s Submissions 36.The Respondent filed submissions dated 13th February, 2026. The issues identified for determination are whether the Claimant’s termination was justifiable and whether the Claimant’s termination was procedurally fair. 37.On the first issue the Respondent submitted that the basis for the Claimant’s termination was section 44(4) of the Employment Act. That the Claimant was absent on 12th April and 12th May, 2021. It is submitted that the absence was contrary to the bank’s policy. That absence from work is classified as a major offence whose consequence ranges from a warning to dismissal/termination or prosecution. 38.It is submitted that the evidence on record is that the Claimant’s absence is not contested. That the Claimant states in her witness statement that she explained her situation to Timothy but does not state whether or not Timothy was a supervisor with authority to grant permission. 39.On the second issue the Respondent submits that it complied with section 41 of the Employment Act on procedural fairness as the Claimant was issued with a show cause letter which she responded to, notified of disciplinary hearing which she attended before she was issued with the dismissal letter. That the Claimant was further afforded a right to appeal. 40.The Respondent submitted that having complied with the law the Claimant’s suit has no merit and should be dismissed with costs. Analysis and Determination 41.I have considered pleadings, the evidence on record and submissions filed by the parties. The issues for determination are whether the termination of the Claimant’s employment was procedurally and substantively fair and if she is entitled to the remedies sought. 42.Sections 41, 43 and 45 of the Employment Act govern fair termination of employment. As was held in the case of Walter Ogal Anuro (supra), an employer must not only prove valid reasons for termination but must also demonstrate that due process was complied with. 43.In the instant case the reasons for termination of the Claimant’s employment was that she absented herself from work on 12th April and 12th May, 2021. The Claimant testified that she explained to the Respondent that on the first occasion on 12th April 2021 she had gone to sort out a water bill which took longer than expected while on the second occasion on 12th May, 2021 she had taken her child to school for admission and the process took longer than she expected. Further, that it rained the whole day. She stated that on both occasions she informed her Team Leader and filled an off day in the ERP system. 44.Section 44(4)(a) of the Employment Act provides that an employer has a right to terminate the employment of an employee if without leave or other lawful cause, an employee absents himself from the place appointed for the performance of his work; 45.In this case the Claimant admitted that she was absent from work on the two dates and had not sought permission. She stated that she called her Team Leader and explained her predicament and further filled for leave so the days were deducted from her leave. 46.The Respondent filed many documents including a previous notice to show cause and warning letter issued to the Claimant in June, 2018. However, the Claimant’s response to the show cause letter that led to the dismissal is not attached to the Respondent’s documents filed in court. The minutes of the disciplinary hearing are also not filed in court. 47.Section 44(4)(a) does not make absenteeism an automatic ground for termination. It states that the absence must be without permission “or other lawful cause” to constitute a ground for dismissal. The averment by the Respondent’s witness that the Claimant was in the habit of absenting herself is not borne out of the evidence in court. In the period she worked for the Respondent from 2013 to 2021, the record shows that she was only absent 4 times, once in 2018, once in 2019 and twice in 2021 on 12th April and 12th May, for which her employment was terminated. 48.Without the benefit of the Claimant’s response to the show cause letter and minutes of the disciplinary hearing, the court is unable to confirm whether or not the Claimant’s explanation for being absent on the two occasions was considered by the Respondent before deciding to terminate her employment. The Respondent obviously knew who Timothy was and the submission that the Claimant did not explain whether or not he was her supervisor is misplaced as there was no allegation that the said Timothy was unknown to the Respondent. 49.On the face of the Claimant’s explanations, they are valid grounds for absenteeism. Going to sort out a water bill and taking longer than anticipated is not uncommon and does constitute a valid reason under section 44(4)(a) of the Act. So does taking a child for admission to school on a rainy day and getting held up beyond the anticipated duration. 50.From the evidence on record it is apparent that the Respondent only considered the fact that the Claimant was absent without permission but did not consider whether or not the reason for the absence was a lawful cause as provided in section 44(4)(a). Both reasons given by the Claimant are valid reasons. The fact that the Claimant called Timothy to explain her absence for longer than anticipated is also a valid consideration. So is the fact that the Claimant signed off both days to be recovered from her leave when she reported back to work. 51.It is further evident from the evidence on record that the Claimant was under the impression that according to the Respondent’s employment regulations and policies absenteeism for less than 7 days did not constitute a ground for dismissal, an indication that the Respondent may not have ensured that the policy documents are availed and explained the policies to employees as required under sections 10 to15 of the Employment Act. 52.For these reasons I find that there was no valid and fair reason for the termination of the Claimant’s employment. 53.On the compliance with fair procedure, again without the minutes of the hearing it is not possible for the court to ascertain if the hearing was substantively fair. According to the Claimant, the hearing was “merely curtain dressing”. However, from the evidence on record the Respondent substantively complied with the requirements of section 41 having issued a show cause letter to the Claimant which she responded to, and notified her of the hearing which she attended. 54.Having found that there was no valid and fair reason for termination of the Claimant’s employment, the dismissal was unfair in terms of section 45(2) of the Employment Act. 55.The Claimant prayed for several reliefs which I will now consider. 56.She prayed for a declaration that the grounds for termination were not valid. I have already found so and declare accordingly. The prayer to withdraw the letter of termination is however declined as the termination cannot be withdrawn, having already taken place. 57.The Claimant further prayed for damages for unlawful termination and for compensation for unlawful termination. The prayer for damages is declined as there was no proof of any ground that would merit award of damages. On compensation, having found the termination unfair, the Claimant is entitled to compensation under section 49(1) of the Employment Act. Taking into account all the circumstances under which the Claimant’s employment was terminated and the factors set out in section 49(4) of the Employment Act, I award her 5 months salary as compensation based on her gross salary of Kshs. 110,000 being Kshs. 550,000. 58.The Claimant further prayed for leave allowances. Her letter of termination states that she was entitled to outstanding leave. The Respondent’s witness also confirmed that the Claimant had outstanding leave. No evidence has been adduced of payment to the Claimant. If the same has not yet been paid, the Respondent is directed to pay the same as stated in the letter of termination. 59.The Claimant is awarded costs of the suit. 60.Interest shall accrue at court rates from date of judgment. DATED, SIGNED AND DELIVERED ON THIS 18TH DAY OF JUNE, 2026MAUREEN ONYANGOJUDGE