[2019] KEELRC 496 (KLR)
The court found that the respondent established valid reasons for the claimant's summary dismissal, including breach of KYC policy, unauthorized processing of a loan, and facilitating fraudulent activity. The claimant admitted to not knowing the customer and failed to obtain proper authorization from his Branch...
Source-derived case information.
- Citation
- [2019] KEELRC 496 (KLR)
- Parties
- Claimant: Kennedy Kioko Wambua; Respondent: Consolidated Bank of Kenya
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 944 of 2015
- Procedural Posture
- Employment Cause / Judgment
- Outcome
- Suit dismissed with costs to the respondent.
- Judges
- B Ongaya
- Legal Topics
- Summary Dismissal, Unlawful Termination, Employee Misconduct, Disciplinary Process, Contributory Fault
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kennedy Kioko Wambua
Claimant
Consolidated Bank of Kenya
Respondent
Procedural Posture
Employment Cause / Judgment
Legal Issues
- 1 Whether the summary dismissal of the claimant was unfair under sections 43 and 45 of the Employment Act, 2007.
- 2 Whether the claimant was denied due process, specifically a show cause notice, prior to dismissal.
- 3 Whether the claimant is entitled to damages for unlawful termination and violation of constitutional rights.
Ratio Decidendi
The court found that the respondent established valid reasons for the claimant's summary dismissal, including breach of KYC policy, unauthorized processing of a loan, and facilitating fraudulent activity. The claimant admitted to not knowing the customer and failed to obtain proper authorization from his Branch Manager. Although the claimant argued he was not given a show cause notice, the court determined that he attended a disciplinary hearing, was aware of the allegations, and fully responded to them. The court held that even if there was a procedural lapse, the claimant's own conduct and admissions demonstrated culpability, and he contributed to his dismissal. Therefore, the...
Court Disposition
Suit dismissed with costs to the respondent.
Orders
- The claimant's suit is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT OF KENYA AT NAIROBI
CAUSE NO. 944 OF 2015
KENNEDY KIOKO WAMBUA.......................................CLAIMANT
VERSUS
CONSOLIDATED BANK OF KENYA.......................RESPONDENT
(Before Hon. Justice Byram Ongaya on Friday 1st November, 2019)
JUDGMENT
The claimant filed a memorandum of claim on 03. 06. 2015 through Antony M. Mulekyo Advocates. The claimant prayed for judgment against the respondent for:
a) General damages for unlawful termination and violation of the claimant’s constitutional rights.
b) Exemplary damages.
c) Costs of the suit.
d) Interest on a, b, and c above.
e) Any other or further relief the Honourable Court might deem fit.
The statement of response to the claim was filed on 27. 07. 2015. The respondent prayed that the claimant’s suit is dismissed with costs.
There is no dispute that the respondent employed the claimant initially as a Sales Representative on 19. 04. 2007. The claimant rose through the ranks of Direct Sales Representative, clerk and as at termination he was a Credit Assistant deployed at the respondent’s Embu Branch.
There is no dispute that the claimant was summarily dismissed from employment by the letter dated 31. 12. 2013 and effective the same date. The reason for dismissal was stated in the letter as follows:
a) The claimant purported to know one Marvine Kiarie Gathu for one year when he introduced him to open an account yet the claimant did not know him. Thus the claimant lied to the bank and facilitated the customer to open an account into which the funds which had been fraudulently obtained were disbursed.
b) The claimant failed to follow the Credit KYC policy and did not do a customer visit to establish where the customer operated from.
c) The claimant failed in his responsibility to the vendor of ensuring that the loan proceeds were paid to him as you facilitated disbursement of the funds to the borrower, Marvine Kiarie Gathu instead of the vendor Abraham Nkanata.
d) The claimant used his discretion to take on a customer from another branch yet the policy required that there be formal approval between the concerned branch managers.
He was to be paid salary up to 31. 12. 2013 and 11 pending leave days. He was paid accordingly. He became dissatisfied and filed the present suit.
The Court finds that the termination was not unfair in terms of sections 43, and 45 of the Employment Act, 2007. The claimant by his own evidence confirmed that he was at Embu Branch but upon resuming duty from leave he processed the loan facility in issue but which had emanated from the respondent’s Meru Branch. The claimant did not exhibit any authority to do so without his Branch Manager’s authority. The claimant offered no evidence to show that his Branch Manager authorised his undertakings in that regard. Further he confirmed by his own evidence that the loan was disbursed and later on the customer defaulted in the repayment and could not be traced. He testified in Court, “I did not know the customer.” Further he confirmed that he was aware of the KYC Policy about staff knowing the customer. He then testified (despite that he did not know the customer except by the loan facility document) that he recommended the customer to open an account at the Embu Branch. The amount the respondent lost in the process was Kshs.4, 600, 000. 00. At the disciplinary hearing the claimant confirmed that he had introduced the customer to open an account at Embu Branch on the strength of a telephone call by Dennis Muthee of Meru Branch. The transactions were in September 2012 and the claimant informed his Branch Manager in April 2013 after he was unable to trace the customer. The Court finds that the reason for termination has been established in terms of sections 43, 45 and 47(5) of the Act.
The claimant lamented that he had not been given a show cause notice. However, the evidence is that he attended the disciplinary hearing, he knew the particulars of the allegations that were levelled, he fully replied and his replies show that he was culpable on the misconduct as conveyed in the letter of summary dismissal. Thus even if the termination was unfair for want of service of the show-cause notice, the Court returns that the claimant fully contributed to his dismissal in view of the established reason for dismissal. Thus he is undeserving of any award under section 49 of the Act and his alleged violation of his constitutional rights was unfounded.
In conclusion judgment is hereby entered for the respondent against the claimant for dismissal of the suit with costs.
Signed, datedanddeliveredin court atNairobithisFriday, 1st November, 2019.
BYRAM ONGAYA
JUDGE