[2018] KEELRC 2601 (KLR)
The court found that the Respondent had discharged both the legal and evidential burden of proof regarding the Claimant's fraudulent conduct and liability for the loss of Kshs 4,611,490/-. The Claimant failed to contest the Counterclaim or appear at the hearing, and the documentary evidence, including expenditure...
Source-derived case information.
- Citation
- [2018] KEELRC 2601 (KLR)
- Parties
- Applicant: Liberato Manga Kivanga; Respondent: Prime Bank Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 1208 of 2014
- Procedural Posture
- Employment Cause / Judgment
- Outcome
- Judgment for the Respondent on the Counterclaim; Claimant's case dismissed.
- Judges
- S Radido
- Legal Topics
- Unfair Termination, Breach of Contract, Fraudulent Misappropriation, Counterclaim Liability
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Liberato Manga Kivanga
Applicant
Prime Bank Limited
Respondent
Procedural Posture
Employment Cause / Judgment
Legal Issues
- 1 Whether the Claimant was unfairly terminated from employment.
- 2 Whether the Claimant is liable for the loss of Kshs 4,611,490/- as alleged in the Counterclaim.
- 3 Whether the Respondent met the legal and evidential burden of proof for the Counterclaim.
Ratio Decidendi
The court found that the Respondent had discharged both the legal and evidential burden of proof regarding the Claimant's fraudulent conduct and liability for the loss of Kshs 4,611,490/-. The Claimant failed to contest the Counterclaim or appear at the hearing, and the documentary evidence, including expenditure registers, debit vouchers, and handwriting analysis, established the Claimant's responsibility for the loss. The court therefore entered judgment for the Respondent for the claimed sum, with costs and interest.
Court Disposition
Judgment for the Respondent on the Counterclaim; Claimant's case dismissed.
Orders
- The Claimant shall pay the Respondent Kshs 4,611,490/-.
- The Claimant shall pay costs of the suit to the Respondent.
Full Case Text
Judgment text and source record
35 paragraphs
Kivanga v Prime Bank Limited (Cause 1208 of 2014) [2018] KEELRC 2601 (KLR) (30 November 2018) (Judgment)
Liberato Manga Kivanga v Prime Bank Limited [2018] eKLR
Neutral citation: [2018] KEELRC 2601 (KLR)
Republic of Kenya
In the Employment and Labour Relations Court at Nairobi
Cause 1208 of 2014
S Radido, J
November 30, 2018
Between
Liberato Manga Kivanga
Claimant
and
Prime Bank Limited
Respondent
Judgment
1. Liberato Manga Kivanga (Claimant) instituted proceedings against Prime Bank Ltd (Respondent) on 18 July 2014 alleging unfair termination of employment and breach of contract.
2. On 9 October 2014, the Respondent filed a Memorandum of Response and Counterclaim.
3. When the Cause first came up for hearing on 8 November 2017, the Claimant sought and secured an adjournment. The reasons advanced were that the Claimant was not available while his advocate on record was before the High Court.
4. When the Cause next came up for hearing on 15 May 2018, the Claimant again sought an adjournment on the ground that the advocate on record was before the High Court. The Court declined to grant the adjournment.
5. When the advocate holding brief indicated that he had no further instructions, the Respondent applied that the Claimant’s case be dismissed, and a date be given for the Counterclaim, an application the Court accepted by dismissing the Claimant’s case and setting the Counterclaim for hearing on 22 October 2018.
6. Despite the date for hearing of the Counterclaim being set in the presence of the advocate holding brief for the Claimant, there was no representation/appearance at the hearing.
7. The Respondent called 2 witnesses and filed submissions on 2 November 2018.
8. The Court has given due consideration to the evidence and submissions.
9. The Respondent’s case is rather straight forward.
10. The Claimant was employed as a Senior Officer in charge of among others human resources. He was also responsible for making payments and maintaining expenditure registers.
11. According to the Respondent’s second witness and Head of Internal Audit, sometime in 2011, the General Manager alerted her about suspected fraudulent entries and instructed her to conduct investigations.
12. The witness testified that she conducted investigations and established that the Claimant and another employee would amend/alter genuinely approved expenditure(s) to show higher figures and upon payment, pocket the difference.
13. The investigations also established that the Claimant and another employee would raise fictitious vouchers and cause payment to themselves. The payments did not have requisite approvals.
14. And to lay the blame at the door of the Claimant, the witness produced the debit vouchers, expenditure reimbursement claim forms, expenditure registers prepared and authorised by the Claimant and another employee.
15. Also produced were the Investigations Report by the witness and a report by a Document Examiner from the Kenya Police demonstrating that the he examined the handwriting and signatures in the vouchers and samples of the Claimant’s signatures and handwriting and came to the opinion that they were made by the same person.
16. The Investigations Report, and the witness testified as much, established that the Claimant was responsible for the loss of Kshs 4,611,490/-, which was the amount counterclaimed.
17. The Court was further informed that the Claimant has a pending criminal case at the Magistrate’s Court of stealing by servant and arising from the same fraudulent activities.
18. After considering the evidence on record, and the fact that the Claimant did not file a Reply to the Counterclaim, the Court finds that the Respondent has met the legal and evidential burden of proof to warrant grant of the relief sought.
19. The Court therefore enters judgment for the Respondent against the Claimant in the sum of Kshs 4,611,490/- together with costs and interest from today.
DELIVERED, DATED AND SIGNED IN NAIROBI ON THIS 30TH DAY OF NOVEMBER 2018. RADIDO STEPHENJUDGEAppearancesFor Claimant Mbugua Mureithi & Co. AdvocatesFor Respondent Mr. Kimani instructed by Macharia-Mwangi & Njeru AdvocatesCourt Assistant Lindsey