https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1293

**REPUBLIC OF KENYA** **IN THE EMPLOYMENT AND LABOUR RELATIONS COURT** **AT MOMBASA** *(Before Hon. Lady Justice Monica Mbarũ)* **CAUSE NO. E103 OF 2024** **HANNINGTON NZOMO MUTHOKA CLAIMANT** *VERSUS* **KCB BANK KENYA LIMITED RESPONDENT** **JUDGMENT** The parties herein agreed to proceed under the provisions of Rule 59 of the Employment and Labour Relations Court (Procedure) Rules. The claimant is an adult male. The Respondent is a limited liability company. On 22 April 2013, the respondent employed the claimant as a personal banking representative, working as a retail banker at a salary of Ksh. 139,850. He was stationed at the Changamwe branch. The claim is that the employment was terminated unfairly and that no notice was issued as required by law. There was no hearing on these unfair labour practices. Under Article 47 of the Constitution and the Employment Act, employment is terminated without due process, thus being unfair. The claim is that the claimant is entitled to terminal dues: 1. One month's notice pay Ksh. 139,850. 2. 12 months' compensation Ksh. 1,678,200. 3. Service pay for 3 years Ksh. 5,034,600. 4. Minimum expectation of 5 years of employment Ksh. 8,391,000. 5. Costs of the suit. In his statement, the claimant avers that he worked for the respondent until 26 September 2023, when he applied for 8 days' leave. The leave application was approved and recorded in the system. He had applied for the 8 leave days to be able to deal with a personal matter that he had been involved in on 25 September 2023 with his girlfriend, which resulted in a brawl between them, and she sustained bodily injuries. She filed a complaint at Changamwe Police Station. He also reported the matter to the same police station but was detained and released the following day to allow for investigations. On 27 September 2023, the claimant went to work to confirm his leave application. He was absent from duty for a day, only to discover that the respondent had approved his leave for 8 days, starting on 27 September 2023. He was due to resume duty on 4 October 2023. On 28 September 2023, the respondent issued him a suspension notice to allow the respondent to complete investigations and initiate a disciplinary hearing. However, on 12 October 2023, he received notice of summary dismissal, with effect from that date. This was done without a hearing. On 10 November 2023, the claimant wrote to the respondent that he had not been accorded a hearing or notice. He was allowed to file an appeal, which he did on 20 November 2023. On 1 December 2023, the claimant was invited to attend an appeal hearing. A virtual meeting was held on 5 December 2023. He attended and explained his case, but, in a letter dated 3 January 2023, he was invited to show cause on various allegations. However, through a letter dated 7 February 2023, the respondent indicated that the summary dismissal notice of 12 October 2023 remains in force. This resulted in unfair termination of employment without due process. In response, the respondent’s case is that the claimant was an employee and, on 25 September 2023, was arrested; released on 27 September 2023; re-arrested on 28 October 2023; and released on 2 November 2023. The reason for the arrest was that he had brutally attacked a customer, Elizabeth Bana Shigari, with a knife. The incident was carried on various news channels, including the Daily Nation newspaper, on 4 October 2023. Given these incidents, the claimant was suspended from duty on 28 September 2023. He was directed to report to the office every Friday but failed to attend. He failed to comply with the terms of his suspension. He did not secure his release from custody within 14 days, as alleged. Given the reputational risk that the claimant’s conduct exposed the respondent. There was a dismissal from employment through a letter dated 12 October 2023. The claimant lodged an appeal against the dismissal on both the substance and procedural requirements. He was invited to a hearing on 5 December 2023, and a notice to show cause was issued on 3 January 2024. The respondent determined that there were valid reasons for the dismissal, which was communicated on 7 February 2024. The respondent followed due process; hence, the claim should be dismissed. The respondent thus submitted that the claim was given a hearing through his appeal, and his explanations did not explain his gross misconduct. After the disciplinary panel heard the claimant, a decision was taken to confirm the summary dismissal. The remedies sought are not available, as held in **Kenya Power & Lighting Company Limited v Aggrey Lukorito Wasike [2017] eKLR**, where the employer genuinely believes a justified ground for dismissal exists, such a belief is sufficient. In **Maina v NCBA Bank Kenya PLC [2025] KEELRC** and **Musumba v Kenya Maritime Authority [2026] KEELRC**, the court held that the employer followed due process. **Determination** Through a notice dated 12 October 2023, the respondent terminated the claimant’s employment through summary dismissal. He appealed against the decision on 20 November 2023. He was referred to a hearing, but a letter dated 7 February 2024 confirmed the summary dismissal. The response is that the claimant engaged in a brutal attack on a customer; he was arrested and remained in custody for over 14 days. He caused the reputational damage. The termination of his employment was justified and for valid reasons. The claimant has admitted that he had a fight with his girlfriend, leading to an arrest by the police. He applied for 8 leave days to resolve the matter. However, his employment was terminated on 12 October 2023. Under sections 44(3) and 44 (4) of the Employment Act (the Act), the employer may terminate employment by summary dismissal where the employee breaches a fundamental provision of the employment contract or is guilty of gross misconduct. In **Postal Corporation of Kenya v Tanui [2019] KECA 489 (KLR),** the court held that, despite the gross misconduct, the employee should be issued notice and allowed to attend on short notice to make his representations. In [**Kenya Revenue Authority v Gitahi & 2 others [2019] KECA 300 (KLR)**](https://new.kenyalaw.org/akn/ke/judgment/keca/2019/300/eng%402019-10-11), the court emphasised that where it genuinely believed that there were reasons that justified termination of employment, the sanction of summary dismissal is available. However, procedural fairness is imperative. This position is reiterated in [**Isindu v Lavington Security Guards Ltd [2017] KECA 225 (KLR)**](https://new.kenyalaw.org/akn/ke/judgment/keca/2017/225/eng%402017-11-03)**.** In this case, the claimant admits that he had a fight. The respondent maintains that the fight involved a bank customer who caused reputational damage, and the matter was highlighted in the news. The claimant was arrested and remained in custody. The absence from duty, the fight with a customer and being absent from duty for over 14 days are defined under section 44 of the Act as a breach of a fundamental condition of the employment Contract. These are also acts of gross misconduct. They justify the termination of employment. However, the employee is protected under section 41(2) of the Act: ***(2) Notwithstanding any other provision of this Part, an employer shall, before terminating the employment of an employee or summarily dismissing an employee under section 44(3) or (4) hear and consider any representations which the employee may on the grounds of misconduct or poor performance, and the person, if any, chosen by the employee within subsection (1), make.*** Despite the breach and gross misconduct, the employee is entitled to notice and a hearing on the shop floor. The employee has the right to be heard in the presence of a fellow employee. In this case, the summary dismissal on 12 October 2023 complied with the procedural fairness standard under section 41(1) of the Act. Issuing a show cause notice after the claimant lodged his appeal, and then confirming the summary dismissal as dating back to 12 October 2023, was to negate the provisions of the law. This can only be defined as an unfair labour practice. In **Kenya County Government Worker’s Union vs. County Government of Nyeri & Another [2015] eklr,** the Court held that: *… the right to “fair labour practices” encompasses the constitutional and statutory provisions and the established work place conventions or usages that give effect to the elaboration set out in Article 41 or promote and protect fairness at work. These include provision for basic fair treatment of employees.* This is emphasised in **Jaji v Kenya Ports Authority [2023] KEELRC 3028 (KLR)**, where the court held that the rights under Article 41 of the Constitution are explained under Section 41 of the Act. These give the employer the right to terminate employment, but also give the employee the security and knowledge that he will get a fair hearing. To thus dismiss the claimant and then allow him to lodge an appeal only to confirm the termination of employment on a date before the appeal was heard is a direct violation of Article 41 of the Constitution. Such a procedure cannot find justification under section 41, 43 or 45 of the Act. Despite the knowledge that the claimant had committed gross acts of breach of his employment contract and was of gross misconduct, he was entitled to procedural fairness as outlined in **Bomas of Kenya v Thiriku [2022] KECA 795 (KLR)** and **Kimongo v Shrink Pack Limited [2024] KECA 678 (KLR).** The resulting implication is that employment was terminated unfairly. The claimant is entitled to notice pay based on his last salary at Ksh. 139,850. Compensation si due under section 45 and 49 of the Act. Taking into account the acts of breach of contract, the gross misconduct that is admitted, and the claimant was made to file an appeal under the belief that he would be given a fair hearing. Form 12 October 2023 to 7 February 2024, such dream was still alive. For the 3 months he waited, he hoped he would get justice. This was not to be. All factors taken into account, compensation at 2 months gross salary is hereby found appropriate. The claimant is awarded Ksh. 279.700. On the claim for service pay at 3 years, the claimant had the benefit of statutory deductions. Under section 35(5) and (6) of the Act, service pay is not due. On the claim for minimum expectation of 5 years employment, employment terminated following breach of contract and gross misconduct. Although there was no procedural fairness, the claimant is expected to mitigate his circumstances by securing new employment as held in [**National Bank of Kenya v Mutonya [2019] KECA 404 (KLR)**](https://new.kenyalaw.org/akn/ke/judgment/keca/2019/404/eng%402019-08-06) **and** [**Kinuthia v Insta-Pumps Engineering Limited [2024] KEELRC 2673 (KLR)**](https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2673/eng%402024-10-31). At the end of employment, the employee is expected to seek alternative employment. On costs, the claim thus addressed, the claimant is entitled to 50% of his costs. **Accordingly, judgment is entered for the claimant against the respondent in the following terms:** 1. **Termination of employment was procedurally unlawful and unfair.** 2. **Notice pay Ksh. 139,850.** 3. **Compensation Ksh. 270,700.** 4. **50% of costs.** **Delivered in open court at Nairobi, this 18th day of May 2026** **M. MBARŨ** **JUDGE** **In the presence of:** Court Assistants: Catherine, Kemboi and Omar ……………………………………………… and …………………………………..…………..