Beatrice Nthenya Kyalo, Margaret Njeri Wokabi, Bancy Wanjiku Ngonjo, Morris Mwadime Mwawasi, Eric Muraya Mwangi, Lucia Karimi David, George Jacob Ochola, Mary Mwikali Kivuwa, Florence Aoko Ng’onga, Godfrey Mathis Henya, Joel Busie Wanyonyi, Richard Leposo Pulei , Caroline Nzioka, Urbanus Kieti Mutinda, Mary Wambui Wahome , Richard Kiptoo Kiprop , John Bundi Magiri, Rita Naliaka Situma, Joyce Njeri Mwaura , Lucy Wanjiru Mbugua, Patrick Muinde Makenzie, Maria Mrunde, Sophie Ndalana, Charles Odongo Opondo, Alice Sabiri Okemwa, Ricarda Wanjira Gutu, John Nzioka Ngwenze, Julius Mwanzia Mutunga, George Ngarari Shampton & Ignatius Lilechi Luyenji v Co-operative Bank of Kenya Ltd [2020] KEHC 9806 (KLR)

REPUBLIC OF KENYA

IN THE HIGHCOURT OF KENYA AT NAIROBI

CIVIL SUIT NO. 1170 OF 2003

1.    BEATRICE NTHENYA KYALO...............................1ST PLAINTIFF

2.    MARGARET NJERI WOKABI ...............................2ND PLAINTIFF

3.    BANCY WANJIKU NGONJO ................................. 3RD PLAINTIFF

4.    MORRIS MWADIME MWAWASI........................... 4THPLAINTIFF

5.    ERIC MURAYA MWANGI ..................................... 5TH PLAINTIFF

6.    LUCIA KARIMI DAVID............................................6TH PLAINTIFF

7.    GEORGE JACOB OCHOLA .................................. 7TH PLAINTIFF

8.    MARY MWIKALI KIVUWA................................... 8TH PLAINTIFF

9.    FLORENCE AOKO NG’ONGA ..............................9TH PLAINTIFF

10.  GODFREY MATHIS HENYA .................................10TH PLAINTIFF

11.  JOEL BUSIE WANYONYI ..................................... 11TH PLAINTIFF

12.  RICHARD LEPOSO PULEI ...................................12TH PLAINTIFF

13.  CAROLINE NZIOKA...............................................13TH PLAINTIFF

14.  URBANUS KIETI MUTINDA ................................14TH PLAINTIFF

15.  MARY WAMBUI WAHOME ..................................15TH PLAINTIFF

16.  RICHARD KIPTOO KIPROP ............................... 16TH PLAINTIFF

17.  JOHN BUNDI MAGIRI............................................17TH PLAINTIFF

18.  RITA NALIAKA SITUMA ...................................... 18TH PLAINTIFF

19.  JOYCE NJERI MWAURA ....................................... 19TH PLAINTIFF

20.  LUCY WANJIRU MBUGUA..................................... 20TH PLAINTIFF

21.  PATRICK MUINDE MAKENZIE .............................21ST PLAINTIFF

22.  MARIA MRUNDE........................................................22ND PLAINTIFF

23.  SOPHIE NDALANA ...................................................23RD PLAINTIFF

24.  CHARLES ODONGO OPONDO ................................24TH PLAINTIFF

25.  ALICE SABIRI OKEMWA ..........................................25TH PLAINTIFF

26.  RICARDA WANJIRA GUTU .......................................26TH PLAINTIFF

27.  JOHN NZIOKA NGWENZE ........................................27TH PLAINTIFF

28.  JULIUS MWANZIA MUTUNGA..................................28TH  PLAINTIFF

29.  GEORGE NGARARI SHAMPTON ............................ 29TH  PLAINTIFF

30.  IGNATIUS LILECHI LUYENJI ................................... 30TH PLAINTIFF

VERSUS

THE CO-OPERATIVE BANK OF KENYA LTD ......................DEFENDANT

JUDGMENT

INTRODUCTION

1. On 7th August 1998, a bomb blast occurred at the then American Embassy situated along Haile Selassie Avenue in Nairobi (the “Bomb Blast”). The plaintiffs in this case were the employees of the defendant and were working at Co-operative House which was next to the embassy when the Bomb Blast occurred.

2. The plaintiffs claim that they sustained severe injuries as a result of the blast and were treated at various hospitals within the country. In their amended plaint, the plaintiffs averred, that while each of them was receiving medical attention, the defendant instructed them and other employees to claim any expenses incurred for treatment due to the Bomb Blast from M/s Co-operative Insurance Company Limited. Each of the defendant’s employees who had sustained injuries in the Bomb Blast was entitled to claim a refund not exceeding Kshs. 200,000/=. They were required to fill in a medical aid scheme form of the expenses and the claim would be vetted by various department heads before being approved. The plaintiffs asserted that each of their claims had been analysed and cleared for payment when the defendant was satisfied of the legitimacy of their claims.

3. They claimed that despite the approvals, the defendant, on various dates in 1999, suspended them from employment on the grounds that they had lodged medical claims that had not been incurred. The following day after the suspension, the plaintiffs were dismissed from employment. They claimed that they had not been given an opportunity to defend themselves against the defendant’s accusations and that due to their wrongful dismissals, they were all denied their rightful benefits which they were entitled to under the Collective Bargaining Agreement, Pension Scheme, Provident Fund and other compensation or dues lawfully owing to them. The plaintiffs maintained that they were innocent of any wrongdoing and stated that their termination by the defendant was unlawful. They averred that the termination was fraudulent since the defendant had initially approved the medical claims and was thus estopped from repudiating their claims.

4. The plaintiffs claimed that after their dismissals, they were coerced into writing resignation letters in a bid to cover up the defendant’s wrong doing. The defendant was also accused of purporting to credit each of the plaintiff’s terminal benefits in their account without formally informing them of the actual amount paid or giving a breakdown of the payment. The plaintiffs also claimed that a second medical examination had been conducted by the defendant’s appointed doctor, one Professor Mbindyo, after they had been summarily dismissed. Some of the plaintiffs had been compensated for their medical expenses after the second medical examination but were not paid their salaries and terminal dues and were not reinstated after they had been exonerated from wrong doing.

5. The plaintiffs claim that they had each received identical letters which stated;

a. “Records held here indicate that you offered false medical claims. Through us (false medical claim), you defrauded the Bank of a Total of Kshs. .......”

b. “We refer to the previous correspondence relating to false medical claims that you uttered and have to inform you that it has been decided to dismiss you from the service of the Bank in accordance with provisions of clause A5(a) of the Collective Agreement with immediate effect.”

6. They averred that the letters contained false allegations of their purported misconduct and were defamatory and injurious against each of them. According to the plaintiffs, those letters would be understood by all reasonable men to mean that each of them was corrupt, unfaithful, of criminal inclination, dishonest and not fit for employment. They claimed that as a result, their reputation had been diminished considerably in the mind of right thinking members of society, family members and the employees of the defendant at the time.

7. The plaintiffs stated that the defendant had used the medical claims as a guise to justify their laying off from employment. That the defendant’s actions amounted to an implied redundancy and they were therefore entitled to severance pay as governed by the Collective Bargaining Agreement between the defendant and the plaintiffs’ union (the “CBA”). They stated that none of them had been paid their pension on cessation of employment. They also claimed that after they had been unlawfully dismissed, they were unable to get alternative employment.

8. They therefore sought the following reliefs against the defendant;

a.  Damages for unlawful dismissal and/or redundancy as pleaded in paragraph 19C herein for each plaintiff herein;

b. An order that the defendant account for each plaintiff’s pension due upon cessation of employment and the same be paid and/ or taken in account on payment of damages in accordance with the rules governing the plaintiffs’ employment;

c.  General damages for unlawful termination/ dismissal and consequential loss of employment as pleaded herein;

d. Costs of this suit and interest on the above until payment in full.

9. In response, the defendant admitted that it had employed the plaintiffs save to add that some were working at its head office while others were working at its branch both located at the Co-operative House when the Bomb Blast occurred. The defendant claimed that a thorough scrutiny of the medical reports and treatment notes submitted by the plaintiffs for reimbursement revealed that they were not only exaggerated but some were also fabricated. It admitted that its officers had initially approved the plaintiffs’ medical claims but claimed that this was done awaiting an audit by a medical expert and the initial approval did not mean that the medical claims by the plaintiffs were genuine.

10. The defendant averred that its decision to summarily dismiss the plaintiffs was in accordance with the provisions of the Staff Manual and the CBA owing to the plaintiffs’ fraudulent conduct of making and submitting false medical claims. It also averred that each of the plaintiffs knew or ought to have known that their employment was based on trust and integrity and making or submitting a false medical claim was not only an abuse of that trust but also a breach of the provisions of Appendix 14 of the Staff Manual and Clause A5 (a) of the Collective Agreement which rendered them liable for summary dismissal.

11. In response to the plaintiff’s claim that they were not given an opportunity to respond or defend themselves, the defendant claimed that the plaintiffs had each been issued with a Notice to Show Cause and were dismissed only after their explanations were assessed and found wanting. The defendant also averred that it had paid all benefits including pension and provident fund into the plaintiffs’ current accounts which they had free unhindered access to. As for the allegation that it had coerced the plaintiffs to sign resignation letters, the defendant claimed that some of the plaintiffs had pleaded with it to allow them to resign so as to enable them continue servicing their loans with it at previously agreed terms applicable to its staff.

12. The defendant also averred that letters sent to each of the plaintiffs contained the correct information and the allegation that they were defamatory was misconceived and without merit as the plaintiffs were the authors of their own misfortune. The defendant firmly denied the plaintiffs’ accusation that it had dismissed them from employment as a guise to justify their laying off and stated that the plaintiffs were not entitled to severance or redundancy pay. It also averred that the plaintiffs were not entitled a month’s salary in lieu of notice and stated that any medical expenses deducted from the plaintiffs were lawful as the monies had been obtained fraudulently.

13. The defendant also contended that its contract of employment with each of the plaintiffs was not a lifetime contract. That either party could terminate it and therefore even if their termination had been unlawful, general damages was restricted to the period of notice and the claim for loss of employment was untenable in law. The defendant also averred that the 24th plaintiff had filed a similar case against the defendant.

THE EVIDENCE

14. This matter was heard on various dates between 28th September 2010 and 9th September 2016. During that time the plaintiffs who testified gave evidence and produced documents in support of their individual cases. I will analyse their evidence separately and give a determination for each of their cases.

15. The defence called two witnesses to testify in support of its case. The defendant’s relationship manager Simon Muriithi Maina (DW1) adopted his written statements and the defendant’s listed documents as his evidence. He further testified that of the 30 plaintiffs, 23 were unionisable staff while 7 had been part of the management. He listed the management staff as Eric Muraya Mwangi, Richard Kiptoo Kirap, Joyce Njeri Mwaura, Patrick Muinde Mackenzie, Caroline Nzaka, Sophie Ndalana and Richard Wanjiru Gitu and said that the management staffs were bound by the Bank Staff Manual while the 23 unionasable staffs were bound by the CBA.  According to the two documents one could be summarily dismissed for gross misconduct such as misappropriating the bank’s funds.

16. DW1 testified that since the bank did not want to be seen to be frustrating staff who had sustained injuries, their medical claims had been processed promptly. The bank then referred the case to its insurance and investigations revealed that some of the claims were false as the alleged treatments didn’t correspond with the nature of injuries. He testified that it was discovered that the bank had been defrauded a total of Kshs.7, 953,700/= as a result of false claims by 59 staff members.

17. DW1 testified that the staff had been issued with show cause letters which they replied to but their responses were found to be insufficient and their services were all terminated. He denied the allegation by the plaintiffs that their admission letters had been written under coercion. He relied on his written statement to illustrate the fraudulent acts of each plaintiff and urged the court to dismiss the suit.

18. During cross examination, DW1 stated that he had joined the bank in March 2010. He stated that the person that had been handling the matter had left the bank in December 2014 but stated that he was conversant with the details of the suit as his predecessor had debriefed him on it.

19. DW1 acknowledged that some of the staff had suffered injuries from the Bomb Blast. He testified that the bank had provided funds for the injured to access medical treatment on reimbursement basis with a limit of Kshs.200,000/=. He stated that the scheme had been provided by the insurance company and was to be administered by the bank. DW1 testified that upon reimbursement, it was drawn to the attention of the bank that some claims were not genuine. The insurance company referred the claims to the bank for investigations which were carried out by Security Department under the Audit Department, which also liaised with the Central Bank Fraud Unit. Questionable receipts were taken to the source of those receipts. They visited the doctors, chemists and the facilities that had issued the receipts and after investigations, the receipts were found to be fraudulent.

20. He admitted that according to the bank manual, employees were to be given a chance to explain themselves during investigations. In the instant case, various letters had been issued. The plaintiffs had been required to respond to the show cause letters within 3 days and had been disciplined as per the CBA and the Employment Act then enforceable.  DW1 insisted that the bank had followed the proper procedure in dismissing its staff. He however conceded that no disciplinary hearing had been conducted.

21. DW1 also testified that all plaintiffs were members of the pension scheme. He testified that terminal dues were payable even where one had been fired for indiscipline and in this case, the plaintiffs had been paid their terminal dues which included their pensions.

22. The defendant also called Doctor Maurice Wambani (DW2) to testify in support of its case. He described himself as a consultant surgeon and specialist in urology. He testified that he had gotten his Bachelor’s degree 40 years earlier and had acquired his masters in 2001. He also stated that he had been involved in treatment of patients from the Bank and had done forensic audits for the bank for a long time.

23. DW2 testified that he was conversant with the medical claims that had been submitted by the defendant’s staff in this case since they had been brought to him for audit.  He testified that his duty had been to confirm whether the claims made tallied with the alleged payments in regard to the nature of illness and the amounts claimed. He proceeded to analyze each of the plaintiffs’ claim and concluded that they did not tally with injuries claimed to have been suffered.

24. After the close of the defense case, the parties filed written submissions to buttress their rival positions.

PLAINTIFFS’ SUBMISSIONS

25. The plaintiffs submitted that at the material time, the defendant had two medical schemes being;

a.  The Management Staff Medical Scheme stipulated in the Staff Manual under Appendix 13.

b. The Union Staff Medical Scheme enshrined in the CBA

26. Having suffered injuries as a result of the Bomb Blast attack, the plaintiffs pursued reimbursement under the two medical schemes. The plaintiffs’ counsel submitted that on 1stMarch 1999, the Managing Director of the Bank issued a circular directing staff to liaise with one Mr. Peter Kathanga, Manager Risk, to get further treatment. Instead, Mr. Kathanga did rounds at Life House, Cannon House, Kenya Re and Union Towers where the defendant’s  staff were working and explained that the Bank had a Group Personal Accident Policy with Cooperative Insurance Company where each person would be entitled to compensation of Kshs. 200,000/=. To utilize these funds, Mr. Kathanga directed staff to invoice expenses then incurred and current, by using the standard forms for reimbursement. Counsel noted that there was no copy of correspondence before the court attesting communication between the bank and the insurance and to counsel this meant that there was no such reviewed insurance policy between the bank and the insurance company.

27. In the month of May 1999, the plaintiffs started receiving letters alleging misappropriation of Bank funds. They later on received letters suspending them from work and were finally issued with letters dismissing them from duty for uttering false medical claims. It was submitted that the mode of dismissal adopted by the defendant was not only in contravention of  clause AB33 of the CBA and appendix 14 Staff Manual but also failed to comply with Sections 35 (1), 41 (2) and 47 of the Employment Act as well as Article 7 of the ILO Convention 58 of 1982. Counsel submitted that the defendant had failed to accord them a chance to defend themselves before the Internal Audit Department also referred to as the Central Staff Committee.  He pointed out that in cross examination DW1 had deviated from his earlier assertion that investigations were carried out by the Bank Security and Central Bank Fraud Unit and alluded to the Insurance Company. He had also failed to present any publication of the said investigations.

28. After their dismissal, the plaintiffs embarked on handing over the defendant’s tangibles in anticipation of their terminal dues, clearance certificates, certificates of service, pension funds and provident funds. After months of pursuit, the plaintiffs were informed by the Human Resource Department that for them to get their benefits, they would need to submit a letter of resignation which had to be backdated to the date of the dismissal letter. The letter also had to bear admission to uttering false medical claims. This was followed by a letter of acceptance from the defendant dated September 1999. Counsel submitted that after this, the plaintiffs tried to access their payment accounts but found them blocked from access. He submitted that the evidence of DW1 intimated that the funds had been appropriated by the defendant as it saw fit.

29. In September 1999, some of the plaintiffs received letters asking them to go for a second medical opinion. The defendant then credited their blocked salary current accounts after the examination. This was, in the view of the appellants’ counsel an attempt by defendant to cover up its wrong doing at all costs.

30. Counsel also addressed the court on the following issues for each of the plaintiffs;

a.  Whether the termination of employment of the plaintiff was wrongful, unfair and unlawful?

b. Whether the plaintiff is entitled to the reliefs sought?

c.  Who bears the costs of this suit?

DEFENDANT’S SUBMISSIONS

31. The defendant’s counsel analyzed each of the plaintiffs’ evidence and concluded that the plaintiffs had failed to discharge their burden of proof under Section 107and109of theEvidence Act. He submitted that the burden of proving that their termination was wrongful and unlawful lay squarely on the plaintiffs but they had failed to discharge that burden. He argued that through the unchallenged evidence of DW2, the defendant demonstrated that the Plaintiffs’ claims which led to their summary dismissal were fake or fraudulent.

32. Counsel also argued that the plaintiffs’ contention that they  were not given a fair hearing and that their terminations were in breach of the law was unmerited as the Plaintiffs were served with a show cause letter but either failed to respond or give a satisfactory answer. He argued that the fact that the plaintiffs were served with show cause letters demonstrated that they had been given a fair hearing through the exchange of correspondence as per the observation of the Court of Appeal in the case of Kenya Revenue Authority vs Menginya Salim Murgani Civil Appeal No. 108 of 2010 [2010]eKLRthus;

“However, in our view, the fairness of a hearing is not determined solely by its oral nature. It may be conducted through an exchange of letters as happened in the matter before us and we are satisfied that it was a fair hearing”

33. In that case, the Court of Appeal also held as follows on damages payable;

“There are clear past decisions of this Court that even where the dismissal or termination is wrongful, the damages payable to the employee is the salary which would have been paid in lieu of notice- see Alfred Githinji vs Mumias Sugar Company Limited (Nairobi Civil Appeal No. 194 of 1991 (unreported) and David Chege Mwangi vs. University of Nairobi, Civil Appeal No. 144 of 1995”

34. Similarly, in Peter Otieno Opollo v Board of Governors Kisumu Polytechnic College & Another [2013] eKLR the Court of Appeal held;

“even if the contract was wrongfully terminated there is a wealth of authorities by this Court that the measure of damages would be the salary in lieu of notice and not the millions claimed by the Appellant”

35. Counsel submitted that both the Collective Bargaining Agreement (P. Exh.1) at Clause A5 (at page 3 of P. Exh.1) sub-clauses a (i), (iv) and (viii) and Appendix 14 of the Staff Manual (page 31-42 of P. Exh.1) at Clause 5 (on page 36 of thereof) provided for instances which entitled the Defendant to summarily dismiss the employee for breaches which amounted to gross misconduct. He argued that in the present case the defendant was justified in summarily dismissing the plaintiffs from employment as they had committed such acts of gross misconduct.

36. Counsel contended that the contract of service between the defendant and the plaintiffs provided for a notice period of one (1) month or 1 month’s salary in lieu of notice. That if the Court was inclined to hold that the termination was wrongful, damages payable to each of the Plaintiffs would be one month’s salary. It was further contended that the Plaintiffs’ claims for severance pay should fail as their employment was terminated not on account of redundancy but through summary dismissal for submitting false medical claims.

ANALYSIS AND DETERMINATION

37. It is common ground that the plaintiffs were the defendant’s employees and were working at Co-operative House adjacent to the American embassy when the Bomb Blast of 7th August 1998 occurred. The horrifying events of that day are etched in the minds of many Kenyans. Without doubt some of the defendant’s employees who were working at Co-operative House at the material time suffered severe injuries as a result of the blast.

38. The plaintiffs’ case, in a nutshell, is that after the Bomb Blast occurred, they sought treatment for their injuries at various hospitals within the country. Afterwards, they were informed that the defendant would reimburse the medical expenses for the treatment of their injuries. They filled their medical claim forms for reimbursement as required and presented them. It is the plaintiffs’ case that their claims were approved but after some time each of them was accused of fabricating their medical expenditure and dismissed from employment. The plaintiffs are adamant that they were innocent of any wrong doing and want compensation for what they claim was wrongful dismissal as well as their terminal dues.

39. The plaintiffs also contended that since their medical claims were approved by various departments, the defendant was estopped from repudiating the legitimacy of their claims. The defendant averred that after approving the medical claims, it lodged the claims with its insurers M/s Co-operative Insurance Company Ltd and was informed that some claims were not genuine.

40. It is common ground that the defendant had instructed the plaintiffs to claim reimbursement for medical expenses incurred as a result of the Bomb Blast up to the sum of Kshs. 200,000/= under the defendant’s Group Personal Accident Policy. In my view, the defendant was not barred from counter-checking the genuineness of the claims after the initial approval by its officers who were not medical experts. The defendant was entitled to conduct investigations to ascertain the legitimacy of the claims and where it found that such claims were not genuine it was entitled to rescind its earlier approval.

41. The defendant claimed that its investigations confirmed that the plaintiffs had uttered fabricated medical claims. In addition to revoking its earlier approval, the defendant also dismissed the plaintiffs from employment. The defendant maintained that it was justified in dismissing the plaintiffs from employment and also averred that all the plaintiffs were paid their dues thus the claim against it is unmerited.

42. Having carefully considered the evidence and the submissions by the parties, I find that several issues are common to the plaintiffs. My analysis would thus be two fold; the first part will deal with the issues that are common to all the plaintiffs after which I shall proceed to examine whether each plaintiff is entitled to the reliefs sought.

43. I will first turn to the common issues raised by the plaintiffs. In my view the following issues are  for determination:

1. The applicable law.

2. Damages for redundancy.

3. The effect of the Plaintiffs’ Resignation Letters

4. Whether the plaintiffs’ are entitled to general damages.

5. Whether the plaintiffs’ were lawfully terminated.

1. THE APPLICABLE LAW

44. Contrary to the plaintiff’s submissions, the applicable law at the material time was the repealed Employment Act CAP. 226(herein referred to as  the “repealed Act”) whose commencement date was 3rd May 1976 as opposed to the Employment Act No. 11 of 2007 which had not come into operation by the time the plaintiffs’ contracts were terminated.

45. In the case of Gerald Muli Killu Vs. Barclays Bank of Kenya Civil Appeal No.10 of 2011 [2016]eKLRthe Court of Appeal held;

“The Appellant’s employment having been terminated in 2005 the cause of action was governed by the repealed Employment Act Cap 226 and the repealed Trade Disputes Act Cap 234 Laws of Kenya through the saving provisions in the new laws that replaced them. It was wrong for the appellant to base his claim on the new laws and seek remedies that were not available in the repealed laws.”

46. Similarly the Court of Appeal in Mary Wakhabubi Wafula v British Airways PLC [2015] eKLR stated as follows;

“The remedies that were available to employees who suffered wrongful dismissal or unfair termination before the year 2007 were clearly set out in the repealed Employment Act, Cap 226 and the repealed Trade Disputes Act, Cap 234, Laws of Kenya……. All that said, then, is to say that this Court only has jurisdiction to award the remedies available at the time of the wrongful dismissal or unfair termination, that is, when the cause of action arose. These are the remedies that are provided for under the repealed Employment Act, Cap 226, Laws of Kenya and the repealed Trade Dispute Act, Cap 234, Laws of Kenya.”

2. DAMAGES FOR REDUNDANCY

47. The plaintiffs claimed severance/ redundancy pay as provided under section 16 A of the repealed Act. They claimed that the defendant had used the medical claims as a guise to justify laying them off from employment. Section 2 of the repealed Trade Disputes Act CAP 234 defines “redundancy” as;

…the loss of employment, job, or career by involuntary means through no fault of an employee involving termination of employment at the initiative of the employer where the services of an employee are superfluous, and the practices commonly known as abolition of office, job or occupation and loss of employment due to the Kenyanization of a business; but it does not include any such loss of employment by a domestic servant;

48. A job becomes redundant when the employer no longer desires it to be performed by anyone (see The Queen versus Industrial Commission of South Australia; ex-parte Adelaide Milk Supply Co-operative Limited (1977) 44 SAIR 1202).

49. The facts presented by the parties are clear that the plaintiffs were terminated for misappropriation of funds and not because of redundancy. It is a well-established principle of law that, “he who asserts must prove.” No effort was made by the plaintiffs to prove their assertions that they had been declared redundant. They did not adduce any evidence to show that their services were superfluous or that their office had been abolished. I therefore find that the plaintiffs are not entitled to severance/ redundancy pay.

3. THE EFFECT OF THE PLAINTIFFS’ RESIGNATION LETTERS

50. The plaintiffs having been issued with termination letters, the contractual relationship between the plaintiffs and the defendant was terminated at that instant. The alleged resignation letters written after the plaintiffs were terminated had no effect on the relationship of the parties for reason that the earlier termination letters had already severed the parties’ relationship. The defendant could not possibly accept their resignations because at the time the plaintiffs were not employees of the Bank.

4. WHETHER THE PLAINTIFFS ARE ENTITLED TO GENERAL DAMAGES

51. The plaintiffs sought general damages for unlawful termination and consequential loss of employment. The defendant argued that prior to the enactment of Employment Act, 2007, general damages payable for wrongful and/or unlawful termination was the equivalent of the termination notice period.

52. In Kenya Revenue Authority v Menginya Salim Murgani [2010] eKLRthe Court of Appeal cited the case of Central Bank of Kenya vs Nkabu [2002] EA 34. The Court held as follow;

“…this Court in a somewhat similar situation involving a contract of employment entered into by the Central Bank and its employee held:-

In view of the conclusions, we have come to, above, we are of the view and so hold that, on the assumption that the respondents dismissal was wrongful he is only entitled to damages equivalent to the salary he would have earned for the period of notice, namely, three months and that the trial Judge erred in awarding him more.””

53. The Court in Menginya Salim Murgani (supra)proceeded to hold that;

“On the issue of the quantum of damages awarded the superior court was not justified in awarding general damages in respect of an alleged breach of a contract of service. By so doing, the superior court overlooked a long line of authorities cited to it by the appellant counsel touching on this well trodden area of law. In our view, the respondent’s entitlement in the circumstances was six months’ salary in lieu of notice and only for the reason mentioned above that there was a violation of the contract of service because the appellant did not sufficiently explain the apparent overlap of the membership of the Staff Committee and the Board.”

54. InPeter Gachenga Kimuhu v Kenol Kobil Limited [2014] eKLRRika J held as follows on the issue of entitlement to general damages;

“There is no justification in seeking compensation for unfair termination as well as general damages for unlawful termination for victimization. The Court explained inthe Industrial Court of Kenya Cause Number 611 [N] of 2009 between Maria Kagai Ligaga v. Coca Cola East and Central Africa Limited [UR]andCause Number 1227 of 2011 between G.M.V v. Bank of Africa Kenya Limited [2013] e-KLR,that it offends the principle of afair go all round,to award general damages for breach of contract in addition to statutory compensation for unfair termination. There is in issue, one economic injury, and Employees must not replicate injuries and multiply remedies.”

55. However, later in Standard Group Limited v Jenny Luesby [2018] eKLR the Court of Appeal awarded general damages to a respondent who had suffered emotional distress because at the time of her termination she was a single mother with two children who faced an uncertain future due to the termination. The Court of Appeal found that the principles established in Peter Gachenga Kimuhu vs Kenol Kobil Limited (supra) were old and inapplicable given that the case was decided 11 years before the new Constitution, 8 years before the Employment Act. The Court of Appeal in Standard Group Limited v Jenny Luesby case (supra)emphasized that ‘so long as an employee can plead and prove breach of a constitutional right within the context of the employee's contract of employment or demonstrate that he is entitled to damages in circumstances as contemplated under the Employment and Labour Relations Court Act (ELRCA), over and above those awardable for unlawful termination, we see no impediment for the trial court granting such relief’.

56. Turning to the facts presented in this case it is not in doubt that the cause of action arose before the Employment Act of 2007 was enacted and before the Constitution of Kenya 2010. In my understanding, the principles established in Kenya Revenue Authority v Menginya Salim Murganiand Peter Gachenga Kimuhu v KenolKobil Limited [2014] eKLR are applicable. In the end, I find that the plaintiffs are not entitled to the award of general damages in respect of the alleged breach of a contract.

5. WHETHER THE PLAINTIFFS’ WERE LAWFULLY TERMINATED.

57. The repealed Act at section 17 provided several circumstances under which an employee could be summarily dismissed. The Act also provided that other than the enumerated circumstances an employer was not barred from alleging that certain acts amounted to gross misconduct and could give rise to summary dismissal. Looking at the evidence presented by the parties it is undisputed that the plaintiffs were summarily dismissed from employment. Section 17 of the repealed Act provides as follows;

“17. Any of the following matters may amount to gross misconduct so as to justify the summary dismissal of an employee for lawful cause, but the enumeration of such matters shall not preclude an employer or an employee from respectively alleging or disputing whether the facts giving rise to the same, or whether any other matters not mentioned in this section, constitute justifiable or lawful grounds for the dismissal –

…

(g) if an employee commits, or on reasonable and sufficient grounds is suspected of having committed a criminal offence against or to the substantial detriment of his employer or his employer's property.”

58. The Court of Appeal in Leisure Lodges Limited v AmiraliShariff [2019] eKLR while considering whether the respondent’s dismissal was lawful observed as follows;

“It is our view that under the repealed Act, the employer had absolute discretion, once any of the transgressions under section 17 aforesaid was demonstrated, to summarily dismiss an employee.

…………

…section 17 of the repealed Employment Act places no strictures on the employer when dealing with summary dismissal so long as the conduct stipulated under it has been established. The respondent failed to extricate himself from accusations that he carelessly and improperly performed his duties as the appellant’s Chief Accountant resulting in financial loss to the latter.”

59. Having identified the applicable law and the relevant provision of the repealed Act, I now turn to the fifth issue, which is whether the plaintiffs’ were lawfully terminated.

60. The burden of justifying the ground for summary dismissal lies upon an employer (seeCMC Aviation Limited v Mohammed Noor [2015] eKLR).

61. In order to establish whether or not the dismissal of the plaintiffs by the defendant was well founded, I shall consider the repealed Act together with the terms and conditions of the employment contract governing the relationship between the parties at the time in question.

62. It is agreed that the relationship between the plaintiffs and the defendant was governed by the Staff Manual for managerial staff and the CBA for the rest of the staff.

63. The defendant claims that it was justified in summarily dismissing the plaintiffs for uttering false medical claims which was a breach of Clause A5 (a) (i), (iv) and (viii) of the Collective Bargaining Agreement (the “CBA”) and Clause 5(ii) (vi) (vii) (viii) and (xiv)of Appendix 14 of the Staff Manual.

64. Clause A5 (a) (i), (iv) and (viii)of the CBA provided;

a)Dismissal

Any of the following acts on the part of an employee shall constitute gross misconduct and/or serious neglect and shall justify instant dismissal.

i)If he/she is guilty of misappropriating any funds or property belonging to the employer or belonging to any person having business dealings with the employer;

iv)If he/she is convicted on a criminal charge of an offence involving, on his part, moral turpitude or if after the employer’s due investigation he is found guilty.

For the purpose of this Clause, an offence involving moral turpitude on the part of an employee is an offence involving active dishonesty and also an offence involving actual violence.

The following would involve moral turpitude:-

1.  All crimes concerning the misappropriation of property belonging to third parties (i.e. larceny, burglary, embezzlement, house breaking, fraud

2.  Fighting and assault, or engaging in riotous, disorderly or immoral behavior during working hours or on the Banks premises or within its precincts’;

3.  Treason.

viii) If an employee commits, or on reasonable and sufficient grounds is suspected of having    committed any criminal offence against or to the substantial detriment of his/her employer’s property.

Clause 5 (ii) (vi) (vii) (viii) and (xiv)of Appendix 14of the Staff Manual provided;

5. Any of the following acts on the part of an employee shall constitute gross misconduct and or serious neglect and shall justify instant dismissal.

(ii) If established or found guilty of misappropriation of any funds, cash and/or property is belonging to the Bank or belonging to any party having business with the Bank or its subsidiaries.

(vi) Suffers pecuniary embarrassment

(vii) Either willfully or by negligence allows or facilitates loss, destruction or damage of any Bank property.

(vii) Makes or signs a statement or entry in a document or official record which is to his/her knowledge false or suppresses defence or destroys a document or official record which it is his/her duty to preserve or produce.

(xiv) Any other gross misconduct not mentioned herein.

65. If it was found that the plaintiffs had indeed uttered false medical claims, the defendant would be entitled to summarily dismiss the plaintiffs in accordance with the CBA and the Bank Staff Manual as such acts did amount to gross misconduct and a breach of trust, integrity and honesty expected from employees of a banking institution.

66. The CBA provided that once an employee was accused of gross misconduct they would be suspended and reinstated if proven innocent in accordance with Clause A5 (c). The clause stipulated;

i) In respect of dismissal for gross misconduct and/or serious neglect as detailed in paragraph A5(a) above, the employer shall suspend an employee for a period not exceeding  thirty (30) days, during which period the employee shall be entitled to be paid at the rate of half his basic salary.  The suspension may be extended at the discretion of the employer.

ii) However, in the event that an employee is awaiting trial either on remand or at large and prosecution is pending on a matter involving moral turpitude as laid down in paragraph 5(a) (iv)         above, the suspension period shall be 90 days which may be extended at the discretion of the employer until such time as the case has been finalized by the Courts during which period the employee shall be entitled to be paid at the rate of half his basic salary.

iii) If during the suspension the employee is proven innocent within the said period of ninety (90) days, or longer in respect of sub-paragraph (ii) above, the employee shall be reinstated in his employment and shall be paid his full salary for the period during which he was suspended.

67. The Staff Manual on the other hand provided the following disciplinary procedure in Appendix 14;

DISCIPLINARY POLICY AND PROCEDURE:

It is in the Bank’s Management stated policy to strive for an open-dialogue style of management.

Under this environment, the Bank is obligated to support its staff on all decisions made with due diligence, in good faith and within delegated authority.  Where there are deviations from policy, rules and procedures by a Staff, the Bank will institute measures in accordance with the disciplinary policy and the rules of natural justice.

…

The disciplinary procedures will be applied for corrective purposes.  When an employee commits an offence, he/she shall be corrected in accordance with existing procedures.  This means on the part of those who will implement the procedures:-

(i)  Thorough investigations into each alleged offence should be carried out preliminarily by the Head of Department and by the Internal Audit Department if the matter is grievous enough to warrant reference to the latter department.

(ii) All circumstances of the case should be taken into careful consideration;

(iii) Past employee’s record should be considered;

(iv) Employees be interviewed and be given a chance to air their own knowledge of the indiscipline.

Disciplinary action should always be prompt, fair, and consistent.

Disciplinary action for Management Staff will progress according to stages outlined here below and the same process shall apply as far as possible in cases of Unionisable Staff.

Disciplinary hearings shall be converted to deal with all cases of indiscipline in order to protect the interests of the Bank and the staff involved.

The Disciplinary action Committee’s proceedings must be conducted in such a manner that no prejudice, performance, pre-conceived concepts or biases are allowed to influence the hearing.

1. DISCIPLINARY PROCEDURES

The following guidelines on handling matters shall be followed:-

(i)Whenever an employee commits an offence it shall be the obligation of the Officer-in Charge to consider the gravity of the offence and take immediate appropriate action.

(ii)If the offence is not so serious but warrants explanation the officer-in-charge shall write to the employee to show cause why within specified time frame disciplinary action should not be instituted against him/her.  This letter will be copied to the Head of Human Resources Development Department with regard to all disciplinary matters affecting staff.

(iii)The show-cause letter should indicate the charge/offences committed by the employee and indicate that if no response is received within the stipulated period, disciplinary action deemed fit shall be imposed without further reference to the employee.[Emphasis added]

68. The Staff Manual also created a Disciplinary Committee at Appendix 14(8)to deliberate on all cases on termination/dismissal or any appeal against any disciplinary action instituted against an employee.

69. The plaintiffs contend that they were not heard prior to their dismissal by the defendant. It was their submissions that the process leading to their dismissal from employment was in contravention of the disciplinary procedures set out in the staff manual and Section 41 of the Employment Act, 2007 both of which provided for a fair hearing before dismissal.

70. The defendant’s position on this is that the plaintiffs were given an opportunity to defend themselves. The defendant argued that the plaintiffs were served with show cause letters and they either failed to respond or give unsatisfactory answers. The defendant relied on the decision of the Court of Appeal in the case of Menginya Salim Murgani (supra)where it was held that fair hearing could be conducted through the exchange of letters.

71. In the case of Anthony Mkala Chitavi v Malindi Water & Sewerage Company LtdCause No. 64 of 2012 (Originally Nairobi Cause No. 754(N) of 2009[2013] eKLRRadido J. discussed the right to fair hearing prior to the enactment of the Employment Act, 2007 thus;

60. Section 41 of the Employment Act, 2007 has now made procedural fairness part of the employment contract in Kenya. Prior to the enactment of the Act, the right to a hearing was not part of the employment contract unless it was expressly incorporated into the contract by agreement/staff manuals or policies of the parties or through regulations for public entities.

61. An employer was free generally to dismiss for a bad reason or a good reason but on notice or payment in lieu of notice. The employer could even dismiss for no reason at all. There was no obligation to notify or listen to any representations by the employee.

62. The law was very harsh on employees. I believe this could have been one of the factors which led to incorporating what has long been referred to in administrative law as the rules of natural justice and embodied in the Latin maxim audi alteram partem rule into the employment contract. Whatever the reasons, the Employment Act, 2007 has fundamentally changed the employment relationship in Kenya. [Emphasis added]

72. In the case of Rift Valley Textiles Limited v Edward Onyango Oganda Civil Appeal No. 27 of 1992 [1994] eKLRthe Court of Appeal held;

With respect to the learned judge, the rules of natural justice have no application to a simple contract of employment, unless the parties themselves have specifically provided in their contract that such rules shall apply. Where a notice period is provided in the contract of employment, as was the case here, then an employer need not assign any reason for giving the notice to terminate the contract and if the employer is not obliged to assign a reason, the question of offering to the employee a chance to be heard before giving the notice does not and cannot arise. Again if the employee were to be minded to leave his employment, say for a better paid job and he gives notice of his intention to leave, the employee is not obliged to assign any reason for his intention to terminate the contract and it would be ridiculous for the employer to insist that he be given a hearing before the employee leaves. As we have said, unless there be a specific provision for the application of the rules of natural justice to a simple contract of employment, those rules are irrelevant and cannot find a cause of action. [Emphasis added]

73. Similarly in Menginya Salim Murgani (supra) the Court of Appeal held that it was improper for the court to import the rules of natural justice to a contract of service. The Court held;

Firstly, as regards the terms of a contract of service or any other contract it is not the business or function of a court of law to rewrite a contract for the parties by prescribing how the organs entrusted with disciplinary matters in a contract must operate or to introduce terms and conditions extraneous to the contract. Secondly, it is for the parties to provide in the contract how such organs should operate and how the hearings, if any, are to be conducted. A court of law cannot in our view, import into a written contract of service rules of natural justice and the Constitutional provisions relating to the right of hearing.

…

With respect, the superior court’s importation and application of the concept of fair hearing as defined in the context of the Constitution was a clear misapprehension of the law. The section does not and was not intended to apply to contracting parties at all or for that matter to a contract of service unless the parties themselves have specifically stated so in their contract. [Emphasis added]

74. As stated in the foregoing authorities, the legal position prior to the enactment of the Employment Act, 2007 was that unless specifically stipulated in the contract of employment, an employer was not obliged to give any reason for dismissing an employee from service. In the current case, the application of the rules of natural justice was expressly incorporated into the Staff Manual whose disciplinary procedures also applied to unionisable staff. In the extracts of the Staff Manual which I have reproduced above, it is clear that thorough investigations should have been made into each alleged offence, all circumstances of the case carefully evaluated and the employee interviewed on the matter. The ordinary meaning of the word “interview,” is a face to face meeting where one party asks questions and the other party answers.

75. In the case of Menginya Salim Murgani (supra)the Court of Appeal cited the decisions in LOCAL GOVERNMENT BOARD vs ARLIDGE [1915] A.C. 120, 132-133, SELVARAJAN vs RACE RELATIONS BOARD [1975] I WLR 1686, 1694,andR vs IMMIGRATION APPEAL TRIBUNAL ex-parte JONES[1988] I WLR 477, 481where it was held;

“the hearing does not necessarily have to be an oral hearing in all cases. There is ample authority that decision making bodies other than courts and bodies whose procedures are laid down by statute are masters of their own procedure. Provided that they achieve the degree of fairness appropriate to their task it is for them to decide how they will proceed and there is no rule that fairness always requires an oral hearing.”

…

Whether an oral hearing is necessary will depend upon the subject matter and circumstances of the particular case and upon the nature of the decision to be made …”

76. The Staff Manual did provide the option of issuance of show cause letters but specified that this was only for offences that were not serious. The charges facing the plaintiffs in this instance were serious allegations. The defendant admitted that its own officers were unable to properly evaluate the plaintiffs’ claims. The plaintiffs were therefore entitled to an oral hearing where they could be interviewed and also call third parties to testify in support of their cases where necessary. Since that was not done in this case, it is my finding that the procedure used by the defendant to dismiss the plaintiffs was not fair.

77. That said, it duty of  this court to determine whether the termination was substantively fair by ascertaining whether there were valid and fair reasons to dismiss the plaintiffs and the defendant’s action to dismiss was reasonable. Indeciding on the reasonableness of the employer’s conduct, this court must determine whether a reasonable employer could have decided to dismiss on the set of facts presented as was held inCFC  Stanbic  Limited  v  Danson Mwashako Mwakuwona [2015]eKLR. The Court of Appeal in CFC  Stanbic  Limited  v  Danson Mwashako Mwakuwona(supra) referred toHALSBURY’S LAWS OF ENGLAND, 4th Edition, Vol. 16 (1B)paragraph 642 which provides:

“In adjudicating on the reasonableness of the employer’s conduct, an employment tribunal must not simply substitute its own views for those of the employer and decide whether it would have dismissed on those facts; it must make a wider inquiry to determine whether a reasonable employer could have decided to dismiss on those facts.

The basis of this approach (the range of reasonable responses test) is that in many cases there is a band of reasonable responses to the employee’s conduct within which one employer might reasonably take one view and another quite reasonably take another; the function of a tribunal as an industrial jury is to determine whether in the particular circumstances of each case the decision to dismiss the employee fell within the band of reasonable responses which a reasonable employer might have adopted. If the dismissal falls within the band, the dismissal is fair; but if the dismissal falls outside the band, it is unfair.”[Emphasis added]

78. In order to do this, the court will address the following issues for each of the plaintiffs;

a. Whether the Plaintiff fabricated or exaggerated any medical reports/documents submitted to the Defendant for reimbursement with the intention of defrauding the Defendant;

b. Whether the Plaintiff is entitled to the reliefs sought.

c.  Who bears the costs?

ANALYSIS AND DETERMINATION OF EACH PLAINTIFF’S CASE

1st PLAINTIFF- PW25

79.    Beatrice Nthenya Kyalo (1st Plaintiff-Beatrice) testified that she had been injured on the shoulder of her right hand, at the right side at her back, around the waist area and on the right leg below the knees when the bomb blast occurred. She was treated by Dr. Audi Tanga. She complained that as she was receiving treatment, her blood pressure was always up. After submitting her claim forms for reimbursement of the medical expenses she had incurred, the defendant accused her of misappropriating Kshs. 126,070/= and dismissed her from employment. Later, she got a letter dated 20th September 1999 from one Peter Kathanga asking her to see Dr. Mbindyo for a second medical opinion. She has not fully recovered and still experiences itchiness in her right leg and her right ear was also unable to hear well. She asserted that her 9 claims forms were genuine and had all been approved by her bosses. She also testified that before her dismissal, she had worked for the defendant for 20 years. She sought payment for her services and urged the court to grant the reliefs sought in the plaint.

80. In his written statement, DW1 stated that the investigations that had been carried out to ascertain whether the Beatrice’s claims were authentic revealed that they were not. Having discovered that she had made false claims amounting to Kshs. 126,700/=, Beatrice was suspended from employment and afterwards dismissed from employment vide a letter dated 13th May 1999 in accordance with the provisions of the CBA. DW1 stated that after her summary dismissal, the plaintiff requested the bank to allow her to resign instead of being summarily dismissed and the defendant allowed her request.

81. The defendant also called DW2 who analyzed the plaintiff’s claim forms from a medical perspective.

a. Whether the plaintiff fabricated or exaggerated any medical reports/documents submitted to the defendant for reimbursement with the intention of defrauding the defendant;

82. Beatrice is accused of uttering false medical claims worth Kshs. 126,070/=. In her first claim form, which was submitted to the defendant on 7th January, 1999, Beatrice sought reimbursement for a sum of Kshs. 15,000/= (P. Exh. 2 pg. 13 & 14). She testified that the claim related to 4 consultations with Dr. Tanga Audi between 21st and 24th December 1998. She stated that she had been issued with a receipt for Kshs.15,000/= on 24th December 1998 and once the bank paid her she went back and paid the doctor. When referred to a carbon copy of the receipt, Beatrice admitted that the only writing on it was her name and the doctor’s signature (D. Exh. 7 pg. 26).

83. DW2 analyzed the claim form submitted on 7th January 1999 and told the court that the claim included costs for injections but failed to state the profile of the injections in the claim form. He stated the treatment purportedly given to the plaintiff had no relation to injuries suffered in the bomb blast 4 months earlier. He also added that it was unprocedural for a consultant to keep the kind of medicines and injections listed in the claim.

84. On 11th January 1999, Beatrice submitted a claim for Kshs.19, 170/= (P. Exh. 2 pg. 22 & 23). She testified that she got injections to reduce her blood sugar and would sometimes be given a drip to strengthen her leg and the injured parts of her body. When referred to a carbon copy of receipt no. 3032, Beatrice accepted that the amount indicated in it was Kshs. 3,000/= and not Kshs. 11,150/= as indicated in the original receipt (D. Exh. 7 pg. 32). DW 2 reiterated that in the claim form submitted on 11th January 1999, there was an indication that injections had been given but they had not been included in the treatment profile.

85. Beatrice also submitted a claim form to the defendant on 15th January 1999 for a sum of Kshs. 37,000/= (P. Exh 2. pg. 10 & 11). She stated that the doctor issued her with a receipt on 15th January 1999 and after making her claim, she went back and paid the doctor’s fee. During cross examination, the plaintiff admitted that the carbon copy of receipt no. 3044 which had been annexed to her claim form had no amount on it (D. Exh. 7 pg. 44). DW2 observed that the doctor charged for X-rays and lab tests in the claim yet he was a consultant surgeon. He also testified that the treatment profile did not mention what injections the plaintiff was given and for how long.

86. Beatrice also accepted that she made a claim for Kshs. 28,000/= on 19th January 1999 for consultations with the doctor on 18th and 19th January 1999 (P. Exh. 2 pg. 7 & 8). On this claim, DW 2 stated that from the receipt, it was clear that the doctor had charged for injections, but had failed to include the medication under the treatment profile. He also pointed out that the doctor was merely a consultant surgeon hence it was unclear why he charged Kshs. 11,000/= for other expenses such as X-ray and lab tests. DW2’s conclusion was that the claim did not relate to injuries sustained on 7th August 1998.

87. Beatrice also submitted a claim to the defendant for Kshs. 15,000/= on 25th January 1999 (P. Exh. 2 pg. 16 & 17). The claim form indicated that the plaintiff had consulted Dr. Tanga Audi on 21st and 22nd January 1999. The plaintiff annexed a copy of receipt no. 3052 for Kshs. 15,000/= but the carbon copy of the receipt had no amount on it. (D. Exh. 7 pg. 52). DW 2 stated that similar to previous claims, the injections given by the doctor were not mentioned in the treatment profile. He also testified that Diflucan is medicine for yeast infection and had no relation to bomb blast injuries. He testified that in certain circumstances, a consultant could give injections but they were to be obtained from the pharmacy.

88. Beatrice also submitted a claim form on 28th January 1999 for a sum of Kshs. 16,000/= (P. Exh. 2 pg. 25 & 26). She testified that she kept seeing Dr. Tanga Audi as he had treated her for a long time and she trusted him. She reiterated that the doctor would fill the claim form and once the bank paid, she would in turn pay the doctor. When showed a copy of the carbon receipt no. 3060, (D. Exh. 7 pg.60) the plaintiff stated that she did not agree with it as her receipt had all details yet the carbon copy had nothing other than her name and the doctor’s signature. DW 2 noted a similar pattern for this claim where costs for injections and X-ray and lab expenses had been included but the treatment profile did not indicate what medication had been administered through injection. He also testified that the drug in the profile was an anesthetic drug which was only given during surgery services.  He also observed that the medication had been given 5 months later and in his view, it did not conform to the injuries.

89. Beatrice testified that after consulting Dr. Tanga Audi on 29th January 1999, she saw him again on 3rd and 4th February 1999. She submitted her claim form for the consultations on 4th February 1999 for reimbursement of Kshs. 28,700/= (P. Exh. 2 pg. 19 & 20). She stated that she developed a kidney problem when she fell and the claim for Kshs. 20,000/= in the form related to treatment for the condition.  DW 2 noted that the drug known as Marcaine which is an anesthetic had been included in the treatment profile. He stated that the drug was administered during surgical procedures and in his view, the treatment was uncalled for.

90. On 9th February 1999, Beatrice sought reimbursement for a sum of Kshs. 17,200/= (P. Exh. 2 pg. 4 & 5). She stated that the claim demonstrated that she had consulted Dr. Tanga Audi on 8th and 9th February 1999. She stated that she would first make her claim then pay the doctor his fee. Concerning the claim, DW 2 stated that the treatment profile was Diflucan which is medicine for yeast and AZY which was an antiretroviral at the time. In his view the treatment profile did not relate to injuries sustained in the bomb blast which had occurred 5 months prior. He also observed that from the receipt the doctor had indicated that the he had charged for injections but did not include the injections in the treatment profile.

91. Beatrice also claimed that she had seen Dr. Tanga Audi on 11th, 12th, 13 and 15th February 1999 and spent a total of Kshs. 30,000/= for treatment. She claimed the total expenses for the consultations by submitting a claim form to the defendant on 15th February 1999 (P. Exh. 2 pg.28 & 29). DW 2 testified that similar to the previous claims, the claim submitted on 15th February 1999 showed that the plaintiff had paid for injections which were not included in the treatment profile. He also testified that the other drug listed in the claim from was an antibiotic. His conclusion was that the claim did not relate to the injury.

92. Beatrice claims that her dismissal from employment was wrongful as she was innocent of any wrong doing. The defendant however maintains that the plaintiff’s dismissal was justified because she fabricated or exaggerated the medical claim forms she submitted for reimbursement of medical expenses purportedly incurred due to the bomb blast. The defendant challenged the receipts produced by Beatrice during cross examination and also called DW 2 to demonstrate that the claims made by the plaintiff did not relate to the injuries sustained during the attack.

93. While the burden of proof initially rests on the plaintiff, the evidential burden may shift in the course of trial depending with the evidence adduced. Normally, the evidential burden shifts to the party who would fail without further evidence. (See Mbuthia Macharia v Annah Mutua Ndwiga & another Civil Appeal No 297 of 2015 [2017] eKLR)

94. In this case, the plaintiff had no response to DW 2’s concern that the claim forms submitted on 7th January 1999, 11th January 1999, 15th January 1999, 19th January 1999, 28th January 1999, 9th February 1999 and 15th February 1999 did not include the profile of the injections she purportedly got from Dr. Tanga Audi. She also failed to call evidence to counter DW2’s contention that as a consultant surgeon, Dr. Tanga Audi could not conduct the X-rays and lab tests her claim form showed had been done by the doctor.

95. During cross examination, the plaintiff was referred to a bundle of documents filed by the defendant, which contained carbon copies of the receipts she had annexed to her claim forms. The plaintiff accepted that the details in the carbon copies differed from the original receipts she had annexed to her claim forms but stated that she did not know where the defendant had acquired the carbon copies from. The defendant did not inform the court the manner in which those carbon copies had been obtained and from whom. I am unconvinced that the barely legible carbon copies proved that the plaintiff had forged the receipts she annexed to the claim forms.

96. That said, I noted that the plaintiff testified that she was issued with receipts by her doctor before she had paid him. She stated that after making her claim and receiving payment from the defendant she went back and paid the doctor. By doing so, the plaintiff misled the defendant into believing that the claims she had submitted were for expenses she had incurred.

97. The plaintiff’s case was further weakened by DW2’s testimony that some of the drugs she had been given had no correlation to the injuries sustained in the bomb blast. For instance, DW 2 testified that the drug known as Diflucan in the claim form submitted on 25th January 1999 was medicine for yeast infection while the drug known as Marcaine in the claim form submitted on on 4th February 1999 was an anaesthetic which was only administered during surgical procedure. In his view the treatment given to the plaintiff several months after she got injured was uncalled.

98. I therefore find that the defendant demonstrated that Beatrice submitted claim forms that were either exaggerated or fabricated.

b. Whether the plaintiff is entitled to the reliefs sought;

99. The reliefs sought by Beatrice  in the amended plaint were inter alia an order that the defendant account and pay her pension, general damages for unlawful dismissal and consequential loss of employment and damages for unlawful dismissal/redundancy including;

a.Severance/redundancy pay- Kshs. 25,851. 60 x 20 years- Kshs.517,032. 00

b.One month’s pay in lieu of notice- Kshs. 25,851. 60

c.  Medical expenses deducted as fraudulent while genuinely incurred- Kshs. 126,070. 00

100. Counsel for the plaintiff submitted that the defendant failed to follow due process in dismissing the plaintiff. He contended that after realizing that it had wrongfully dismissed the plaintiff, the defendant asked the plaintiff to visit one Prof. B. S. Mbindyo for a second opinion on her injuries but never produced the report of the said doctor in court. Counsel submitted that since the plaintiff had made out a case for unlawful termination she was entitled to the reliefs sought. He urged the court to award the plaintiff general damages of not less than Kshs. 16,000,000/= based on her length of service to the defendant for over 20 years and her inability to secure any formal employment as her resume had been tarnished by the Defendant.

101. Conversely, the defendant’s counsel argued that the evidence of the plaintiff in cross examination and the evidence of DW2 clearly showed that the plaintiff had fabricated her medical claims. It was counsel’s submissions that the plaintiff’s conduct amounted to a breach of her terms of employment and the termination of her employment was warranted. He submitted that since the plaintiff had been properly dismissed from employment she was not entitled to any of the reliefs sought. He also contended that the plaintiff’s terminal benefits had been duly paid and her plea for general damages had no legal basis thus her claim for those reliefs ought to be dismissed.

102. In analyzing the termination of an employee, a court must be satisfied that the dismissal was both substantively and procedurally fair. I found that the claims submitted to the defendant by the plaintiff were not genuine in my analysis of the foregoing issue. The utterance of the false medical claims by the plaintiff was a gross misconduct and a good reason for her dismissal from employment.

103. The procedure adopted by the defendant was however non complaint with the CBA and Staff Manual which required that the rules of natural justice apply to the disciplinary process. It was also a requirement that the employee be interviewed on allegations she was facing and be given a chance to air her own knowledge of the indiscipline and that was not done. I therefore find that the plaintiff is entitled to damages for wrongful dismissal, which was capped at the salary one would have earned for the period of notice under the preceding law. An employee was not entitled to general damages under the previous legal regime and I dismiss the plaintiff’s claim for the same. I similarly dismiss her claim for severance/ redundancy pay which was not proved.

104. As for the plaintiff’s terminal benefits, DW1 testified that her dues of Kshs. 5,973. 80/= had been credited into her account. He stated that at the time she was dismissed from employment Beatrice had an outstanding loan of Kshs. 1,142,596/= with the bank. He stated that the plaintiff’s terminal benefits had been used to offset her Co-op card debit of Kshs. 1,024/= and the balance of Kshs. 4,949. 80 applied towards her house loan. DW1’s computation of terminal benefits was not challenged by the plaintiff and I find that the same was duly credited to her.

105. For the reasons given, I award Beatrice Nthenya Kyalo, Kshs. 28,199/= as damages for wrongful termination of her services by the defendant.

2nd PLAINTIFF-PW13

106.  Margaret Njeri Wokabi (2nd Plaintiff-Margaret) testified that she had sustained injuries on her left hand, her feet and had lost 4 teeth due to the bomb blast attack. She testified that her daughter had found her being given first aid nearby and had taken her to St. Thomas Medical Health Service at Tena Estate about 15 minutes from Cooperative House, where one Dr. Muigsha attended to her. Pieces of glass were removed from her feet and her cuts wounds were stitched and dressed. She testified that she paid a total of Kshs. 9,625/= for the injections she got. She later filled part of the claim form and Part ‘B’ had been filled by the doctor on 30th November 1998. The form was submitted the same day and was approved on 22nd January 1999.

107. Margaret recalled that she received a letter dated 5th August 1999 alleging that she had made fraudulent claims. She was suspended for 2 months before she received her dismissal letter on 5th October 1999. She told the court that she had worked at the bank for 22 years and had 5 years to retire before the bank sacked her. She testified that her 11 children did not get the education she had wanted them to get because she could not get work elsewhere and this had affected her mentally. She stated that she still had to see doctors for chest problems as a result of the impact and also complained that she could not eat with the side of her mouth which had missing teeth.  She also stated that at the time, she got dismissed she had a loan of close to 1 million.

108. During cross examination Margaret confirmed that her total medical claim had been for Kshs. 148,044/=. She testified that she had been treated by Dr. Hannah Mugisha who was a family doctor and also saw an ENT specialist known as Dr. Kioni Warugongo located at NIC building on the 1st floor. She also saw one Ms. Mary Nduati who had fixed her teeth and saw another doctor when Ms. Nduati passed away. The court noted that Margaret had dark patches on both feet and had scars on the face, the left hand at the wrist and on the lower part of the left leg. Margaret admitted that when she got dismissed her salary had been deposited in her account. She also accepted that she had been paid for leave days. She stated that she had taken out a loan for a house which she paid and was given a lease for the house.

109. The defendant’s witness, DW1 testified that according to their investigations, the receipts issued by Dr. Mugisha were fraudulent. DW2 expounded that the medical claim did not indicate when Margaret had made her visits to the doctors. He stated that the injuries indicated in her claim were severe injuries and could only have been handled at a major hospital with facilities and not at a small clinic. In his view, it was highly unlikely that the injuries she suffered were as serious as she claimed.

a. Whether the plaintiff fabricated or exaggerated any medical reports/documents submitted to the defendant for reimbursement with the intention of defrauding the defendant;

110. The defendant’s counsel submitted that Margaret could not explain in cross examination why she went all the way to Tena Estate, instead of going to Kenyatta National Hospital or Nairobi Hospital which were closer to the scene. He also argued that the evidence of DW2 was conclusive that Margaret did not suffer the injuries she alleged to have suffered and accused her of attempting to defraud the defendant of a sum of Kshs. 148,444/=.

111. There is no dispute that the plaintiff was in the vicinity of the bomb blast when it occurred. She testified that she had sustained injuries on her left hand, her feet and lost 4 teeth due to the blast. The only medical form produced in court was one submitted on 30th November 1998 claiming total expenses of Kshs. 9,625/=. Part of the form had been filled at St. Thomas Medical Health Services. A letter from the facility dated 23rd February 1999 written by Dr. Mugisha confirmed that Margaret had been treated at the facility on the day the blast occurred (P. Exh.2 pg. 38 & 39). The doctor indicated that Margaret first went to the clinic on 7th August 1998 and had deep cuts under the foot, was breathless and was bleeding from her mouth having lost four teeth. The doctor also stated that Margaret’s situation would be reviewed after 7 days and a subsequent monthly review conducted for pneumonia and dyspnoea.  If there were other medical forms, they were not adduced before the court.

112. I am not persuaded by the opinion of DW2 that the injuries Margaret suffered were not as severe as she claimed. His suspicion was based on the fact that the plaintiff had not been treated at a ‘serious hospital.’ The plaintiff’s doctor wrote a letter dated 23rd February 1999 confirming that the plaintiff had been treated at the facility for the injuries she enumerated in her evidence. Margaret also testified that the facility was well equipped and had a laboratory, X-ray machines and admission facilities. Additionally, there was no indication that the defendant had specified the facilities in which the plaintiff was required to seek treatment. It is therefore my conclusion that the defendant did not prove that the plaintiff fabricated the claim for Kshs. 148,044/=.

b. Whether the plaintiff is entitled to the reliefs sought;

113. Margaret sought an order for payment and account of her pension, general damages for unlawful termination and loss of employment as well as damages for unlawful dismissal including;

a.Severance/redundancy pay- Kshs. 54,545 x 22 years - Kshs.1,199,990. 00

b.One month’s pay in lieu of notice- Kshs. 54,545. 00

c.Medical expenses deducted as fraudulent while genuinely incurred- Kshs. 148,444. 00

114. The plaintiff’s claim for severance/ redundancy is dismissed for reasons given in the introduction of this decision. She is however entitled to a month’s pay in lieu of notice as her dismissal was both procedurally and substantively unfair. No hearing was done prior to her dismissal. The defendant also failed to prove that it had a justified reason for dismissing the plaintiff from employment.

115. As for the claim for medical expenses, there was no proof that the defendant deducted Kshs. 148,444 from the plaintiff’s account as shown in the computation of terminal benefits referred to by DW 1. (D. Exh. 6 pg 3).

116. The plaintiff’s counsel also argued that Margaret was entitled to general damages not lower than Kshs. 17,500,000/= since her name had been tarnished by the defendant and she could not effectively educate her children due to the termination of her services. It was held in the case of Central Bank of Kenya vs Nkabu (supra) that an employee is only entitled to damages equivalent to the salary he would have earned for the period of notice. The plaintiff is therefore only entitled to a month’s pay in lieu of notice for the wrongful termination of her services by the defendant.

117. Regarding the plaintiff’s terminal dues, DW1 testified that at the time she was dismissed, Margaret was earning Kshs. 47,045/=. He stated that her terminal dues for Kshs. 46,020. 40 were duly credited into her account. The amount was used to offset her Co-op Card Debit balance of Kshs. 7,980/= and Kshs. 38,039. 95 was applied towards her house loan but she still had an outstanding loan balance of Kshs. 984,550/=. He also testified that Margaret had been paid her leave allowance and hence was not entitled to the sums she claimed. Margaret admitted that she had a house loan and also stated that she had been paid her salary and leave days. She did not tender any evidence regarding her pension. Moreover, DW1’s evidence and his computation of her terminal dues was not challenged. I therefore find that the plaintiff’s dues were paid and the rest utilized in offsetting her debt with the defendant. Her payslip for the month of September 1999 shows that her gross salary was Kshs.31022/- ( PExh2. pg 48).

118. In the end, I find that Margaret Njeri Wokabi is only entitled to an award of Kshs. 31,022 /= for damages wrongful termination of her services by the defendant.

3rd PLAINTIFF- PW22

119.  Bancy Wanjiku Ngonjo (3rd Plaintiff-Bancy)stated that she sustained cuts on both knee joints and on the ankle joints and got a severe headache and chest pains as a result of the blast. She recalled that she had left the scene bleeding and was rushed to Dr. Gichimo for treatment after the blast. Her injuries were treated by 5 doctors including Dr. Tanga Audi, Dr. S.S Faya, Dr. Kioni Warugongo and Dr. Kimani. She confirmed that after receiving treatment she submitted several claim forms to the defendant for reimbursement of her medical expenses.

120. Bancy recalled that she was dismissed from employment for defrauding the bank of Kshs.197,936 /=. Sometime after her dismissal, the bank wrote to her to see Dr. Mbindyo which she did. The secretary of the Managing Director known as Mrs. Murigi called her to her office and wrote a letter for her indicating that she had resigned yet she had already been dismissed from employment. She complained that she still went to hospital as she had not healed well and urged the court to grant her the reliefs sought in the plaint.

121. When taken through her written statement in cross examination, Bancy admitted that she had not stated that she had suffered injuries on her hands, her shoulders or bled on the face. She testified that she was taken to J.K. Gichimo Clinic on the day of the bomb blast by people unknown to her and testified that although she saw the doctor 8 times at his clinic she could not recall its exact location.

122. DW1 testified that the plaintiff had submitted various receipts totaling to Kshs. 197,936/= to the defendant being medical claims for injuries allegedly sustained in the bomb blast. He stated that the investigations carried out by the Bank revealed that several receipts which the plaintiff claimed had been issued by Dr. J.K. Gichimo, Dr. S.S. Faya, Dr. Tanga Audi, Dr. H. Kimani and Dr. Kioni were fraudulent. He stated that the plaintiff had had 15 injections in a span of 4 days and the injuries she had sustained did not tally with the specialization of the doctors she allegedly consulted. He testified that the plaintiff was dismissed from employment but she requested to be allowed to resign from employment and confirmed that the bank could deduct her impugned medical expenses from her benefits. The testimony of DW 2 confirmed that the treatment listed in the plaintiff’s claim forms did not relate to the injuries of 7th August, 1998.

a. Whether the plaintiff fabricated or exaggerated any medical reports/documents submitted to the defendant for reimbursement with the intention of defrauding the defendant;

123. Regarding the claim she submitted on 10th February 1999, Bancy testified that it related to consultations she had with Dr. Tanga Audi thrice in December and 4 times in November (P exhibit No. 2 pg. 49 & 50). She confirmed that she had been given injections worth Kshs. 7,000/= for pain in her back and chest. She stated that she had paid Dr. Tanga all his money at a go and had no arrangements with him on payment of his bill. For his part, DW2 testified that the medication in plaintiff’s claim form known as Busulfan was used to treat for cancer and not the injuries suffered by the plaintiff.

124. Bancy  also stated that she consulted Dr. S.S. Faya on 16th February 1999 and made a claim for Kshs. 2,660/= which included consultation fees, cost of injections and drugs. (P. Exh. 2 pg. 51 & 52). She told the court that she had to see Dr. Faya because she could not stand due to her knees. DW2 testified that the medication on the claim form was for pain and it was possible that the medicine was used for the injuries suffered.  He also testified that it was possible that the injection indicated in the claim was used to treat a scar if it was not healing.

125. The plaintiff also testified that she had to seek treatment from Dr. Kioni for her continued headaches and earaches. She confirmed that she had made the claim for Kshs. 30,000/= after she had had 5 consultations with Dr. Warugongo Kioni on 26th, 28th and 30th September 1998 and on 3rd and 5th October 1998 (P. Exh.2 pg.54 & 55). She produced a receipt issued by the doctor to prove that she had paid the doctor Kshs. 30,000/=.

126. Bancy also submitted another claim form for Kshs. 34,000/= for 5 consultations she had with Dr. Warugongo Kioni between 7th and 16th October 1998 (P. Exh. 2 pg. 57 & 58). She testified that claim she submitted to the defendant on 11th February 1999 included costs of injections and tinnitus therapy. DW2 observed that the treatment profile in the claim was not mentioned and all that was indicated on it was an injection for Kshs.15, 000/=.

127. Bancy submitted a further claim for Kshs. 40,000/= for 6 consultations with Dr. Warugongo Kioni between 23rd October 1998 and 28th November 1998. The claim she made on 16th February 1999 included costs for injections and tinnitus therapy. DW 2 noted that the profile of treatment was not mentioned in the claim form.  He also testified that it was not clear what was being treated by the injections indicated in the claim.

128. DW2 also testified that the claim forms submitted by the plaintiff for treatment she received from Dr. Kioni showed that the plaintiff was seeing the ENT specialist for a hearing problem which may have been caused by the bomb blast. He however noted that the injuries did not tally with what had been indicated earlier by the plaintiff. DW2 also testified that it was highly unlikely that the consultation fee and the Tinnitus counseling fee would be different as stated in the plaintiff’s claims.

129. Regarding the claim she submitted to the defendant on 4th January 1999 for Kshs. 29,186/=, Bancy testified that it related to treatment she received from Dr. Kimani located at Uhuru Shopping Centre where she used to reside (P. Exh. 2 pg 63 & 64).  She recalled that she had been taken to the doctor by her children when she fell sick at night. She testified that saw the doctor on 2nd, 6th and 10th September 1999 and stated that she had never seen Dr. Kimani before that. Bancy stated that after treating her the doctor gave her medicine and was paid Kshs.10,106/= and the remainder was paid later. She testified that the doctor had also gave her medication for which she produced a receipt for Kshs. 19,080/=.

130. DW2 noted that the medication in the claim submitted on 4th January 1999 known as Ciproxin was used to treat an infection while the drug known as Losec was used to treat ulcers and did not relate to the injuries the plaintiff had suffered. He stated that the same claim mentioned injections which were not captured in the treatment profile.

131. Bancy further testified that her claim submitted for Kshs. 29,180/= on 5th January 1999 related to treatment she got from Dr. Gichomo whom she described as an obstetrician and gynecologist (P. Exh. No. 2 pg 69 & 70). She stated that she saw the doctor on 16th, 18th, 20th,  22nd and 24th September 1998 because she was losing memory and was given medication worth Kshs. 19,080/=.  She stated that she was given injections worth 4,800/= for pain and the other injections worth Kshs. 6,750/= for her memory. Bancy testified that she paid an all-inclusive sum of Kshs. 29,750/= on the last day of her consultation. She testified that she got to know the doctor the second time she went to the clinic and he agreed that she could pay him later. DW 2 told the court that the stitching and sterile dressing indicated in the claim should have been done in August when the injuries were sustained and not in September. He however acknowledged that the profile of medication tallied with the injuries.

132. Upon analyzing the evidence of the plaintiff and DW2, I have reached the conclusion that other than the claim form submitted on 16th February 1999 the rest of PW 22’s claim forms were not genuine. Bancy did not call evidence to challenge the evidence of DW2 that the medication she received under the claim forms she submitted on 10th February 1999 and on 4th January 1999 were used to treat injuries she sustained in the bomb blast and not cancer or ulcers and an infection respectively.

133. Although it was possible that the plaintiff suffered injuries in her ear and consulted Dr. Kioni who was an ENT specialist, DW2 brought it to the court’s attention that the treatment profile was not included in forms submitted on 11th February 1999 and 16th February 1999. The defendant was therefore justified in rejecting the two claims. The plaintiff claim arising from consultations with Dr. Gichomo also seemed fabricated as the plaintiff testified that she had gone to see the doctor for memory loss yet she described him as an obstetrician and gynecologist.

b. Whether the plaintiff is entitled to the reliefs sought;

134. The reliefs sought by the plaintiff in the amended plaint included an order that the defendant account and pay her pension, general damages for unlawful dismissal and consequential loss of employment and damages for unlawful dismissal/redundancy including;

a.Severance/redundancy pay- Kshs.26,813. 80 x 19 years - Kshs.509,462. 20

b.One month’s pay in lieu of notice- Kshs. 26,813. 80

c.Medical expenses deducted as fraudulent while genuinely incurred- Kshs. 197,936. 00

135. The plaintiff’s counsel submitted that after realizing that they had wrongly dismissed the plaintiff, the defendant baited the plaintiff into signing a resignation letter in order for the bank to consider having her repay her bank loan at the staff rate that only attracted interest of 2%, as opposed to the Commercial rate which was very high. He submitted that since she was out of employment for about 5 months the plaintiff was hard pressed to agree to the resignation. Counsel submitted that this was an attempt by the defendant to cover up its failure to follow due process in dismissing the plaintiff and that the plaintiff was entitled to the reliefs sought for unlawful. The court was urged to award the plaintiff an all-inclusive sum of Kshs. 12,000,000/= for the inconvenience the plaintiff had suffered for her unlawful termination and her inability to secure employment as her resume had been thoroughly tarnished by the Defendant.

136. The defendant’s counsel argued that from the evidence it was clear that Bancy had fabricated her claim and her dismissal was therefore well based. Counsel also submitted that the plaintiff’s terminal benefits had been credited into her account and that her plea for general damages was unfounded.

137. From the foregoing analysis, it is evident that the defendant had good reasons to dismiss the plaintiff from employment. Although there was substantive fairness in her dismissal, the procedure laid down in the CBA and Staff Manual was not followed by the defendant in dismissing the plaintiff from employment.

138. As there was procedural unfairness in the plaintiff’s dismissal, she is entitled to damages. The plaintiff’s counsel urged the court to grant the plaintiff general damages of Kshs. 12,000,000/=. No basis was given for the proposal. Moreover, the claim for general damages is not supported by the law prevailing at the material time. Under the previous legal regime a claimant was only entitled to damages equivalent to the salary she would have earned for the period of notice, which in this case, is a month’s salary.

139. The plaintiff’s claim for severance/ redundancy pay was not proved and the same is dismissed.

140. Turning to the plaintiff’s terminal dues, DW1 testified that the plaintiff’s resignation was accepted and her terminal benefits of Kshs. 12,728. 10/= duly credited into her account. He told the court that the amount was used to offset the plaintiff’s Coop bank Sacco loan although the plaintiff still owed the bank Kshs. 314,638/= being a house loan she had borrowed. He stated that the plaintiff’s accrued leave days were duly paid to her and that the bank deducted a month’s salary from the plaintiff in lieu of notice. He also testified that the pension payable to Bancy as at April 1999 was Kshs. 40,645. 95.

141. DW1’s testimony that the Bancy had been paid her terminal benefits was not challenged by the plaintiff. She also failed to prove that the medical expenses she genuinely incurred were deducted from her account. I therefore find that the plaintiff was duly paid her terminal benefits.

142.  Bancy Wanjiku Ngonjo is however entitled to a month’s salary of Kshs. 20,269/= being damages for the wrongful termination of her services.

4th PLAINTIFF-PW17

143. Morris Mwadime Mwawasi (4th Plaintiff-Morris) confirmed that he had sustained the injuries set out in his statement on 7th August 1998. He recalled that he had submitted his claim forms to the defendant and was later accused of making a false claim for a sum of Kshs.102,890/=. Morris testified that the office of the Chief Manager told him to write an apology letter accepting that he had defrauded the bank so that he could be retained in employment and he did as he had been instructed. He also recalled that he had been ushered into a room alone with two men and was told that he had two options the first one was to write a letter as per what they dictated to him and the second option was to get handcuffed and taken to Industrial Area. He testified that he chose to write another letter dated 25th March 1998 but he nevertheless received a dismissal letter dated 13th May 1999. He testified that he was self-employed at the moment and complained that he had not completely healed from the injuries he had sustained. He also urged the court to grant him the prayers set out in his plaint.

144. During cross examination Morris testified that he had sustained a deep cut on my right forearm, a sprained left arm and a sprained right ankle. He stated that he also experienced shock due to the blast. He testified that when they were told that the hospitals in Nairobi were congested, he was taken to Ongata Rongai where he saw Dr. Gitwanya at an outpatient clinic known as Rankai Uzina clinic who was in the bank’s panel. Morris testified that he had made 6 consultations, 5 of them in August one in September. He testified that he had embedded pieces of glass removed and was treated for the sprains. He testified that the removal of the pieces of glass was not done in a day and stated that if the condition of the wound got worse it would be checked and more glasses found.

145. The plaintiff stated that he believed the doctor was the right person to treat him since the doctor had treated him before. He also testified that the doctor signed his claim form on the 26th January 1999 and issued him with a single receipt although he had not made a lump sum payment. Morris also told the court that he had made another claim for 7 consultations which was signed by his doctor on 11th February 1999. He however conceded that there had been a duplication of the claims in his first claim form submitted on 27th July 1999 and the subsequent claim submitted on 12th February 1999 and acceded that going by the documents, the defendant had paid double. He accepted that some of his receipts had no date and put the blame on the doctor. He admitted that at the time he was dismissed he had an unpaid loan and stated that he could not be certain whether the sum of Kshs. 19,215. 05 had been credited into his Sacco account since he had no access to his Sacco account which was frozen.

146. In response, DW1 testified that according their investigations, it was revealed that the plaintiff’s medical claim for Kshs. 102,890/= was fraudulent. He testified that when Morris was issued with a show cause letter dated 10th May 1999, he wrote a response on the same day stating that he had been misled into making false medical claims and was dismissed from employment on 13th May 1999.

147. DW2 testified that some of the medication listed in the plaintiff’s claim forms, was only given when one had been operated on and had been admitted yet the plaintiff in this case had not been admitted to hospital. He also observed that some of them were used to treat conditions which had nothing to do with the injuries sustained.

a. Whether the plaintiff fabricated or exaggerated any medical reports/documents submitted to the defendant for reimbursement with the intention of defrauding the defendant;

148. The plaintiff was dismissed from employment by the defendant for making a false claim of Kshs. 102,890/=. He testified that he suffered a deep cut on the right forearm with penetrating glass pieces, sprained left arm and a sprained right ankle due to the bomb blast. The defendant does not dispute the plaintiff suffered those injuries but contends that the claims made by the plaintiff did not relate to the injuries he claimed to have suffered.

149. The first claim form submitted by the plaintiff on 27th July 1999 pertained to consultations he had on 8th , 12th , 16th , 25th and 30th August 1998 and 2nd September 1998 (P. Exh. 2 pg. 77-78). The claim was for a total of Kshs. 28,750/= which included the consultation fees, costs for injections and other expenses. Attached to the form was a receipt issued by Ronkai Uzima Medical Clinic for Kshs. 28,750/=. DW 2 observed that the claim was within the period when the blast occurred. He informed the court that the 1st and 2nd medicines on the claim form were for pain but the 3rd and 4th medication including 10 bottles of dextrose were administered when one was admitted. He stated that it was impossible to infuse the bottles in one visit and he could not fathom how the plaintiff could have done it himself as a patient since there was no indication in the form that the plaintiff had been admitted.  DW2 also testified that the medicine was right but the sequence of giving them did not conform.  He also stated that the claim had included a surgical fee of Kshs. 10,800/= but it was not clear what the surgery was for.

150. During cross examination, Morris was questioned about the receipt for Kshs. 28,750 annexed to the claim he had submitted on 27th July 1999. He stated that he had made payments in installments but was issued with one receipt for a lump sum on 26th July 1999. It is reasonable to expect that he would have been issued with a receipt each time he paid the doctor. The evidence of DW 2 and the lack of an adequate reason from the plaintiff for why he was issued with a lump sum receipt leads me to the conclusion that the claim for Kshs. 28,750/= was doubtful.

151. The second claim form submitted on 12th February 1999, related to consultations on 7th, 10th, 12th, 13th and 25th August 1999 and 1st and 10th September 1999 (P. Exh. 2. Pg.80 to 81). In cross examination, Morris told the court that the claims were for the year 1998 and stated that the doctor had mistakenly written the year as 1999. According to DW2, the drugs listed in the claim had no relation to the injuries the plaintiff had claimed he suffered in the blast. He testified that the first medicine was an antibiotic known as Pentamidine which is used to treat bilharzia. The plaintiff did not lead evidence to rebut the evidence of DW 2 that his medication were not related to his bomb blast injuries. Additionally, the plaintiff’s explanation that the doctor had written the wrong year appeared to be an afterthought since he did not indicate that there was such an error in his written statement dated 11th September 2013. The plaintiff also admitted that there was duplication in his initial claim form dated 27th July 1999 and the subsequent claim submitted on 12th February 1999, which meant that the defendant had reimbursed him twice. I therefore find that the claim submitted by the plaintiff to the defendant on 12th February 1999, was fabricated.

152. Morris also made a claim for Kshs.35,720/= on 5th February 1999 (P. Exh. 2. Pg.83 & 84). He stated that the amount included cost of injections, surgical fees and fees for consultations on 9th, 13th, 15th, 16th, 19th and 25th September 1998. For this claim, DW 2 testified that the injection known as Pipril in the claim form was used to relieve pain due to nerve disturbance and was given when one is admitted. He testified that the I.V. was also given to a person who had been admitted. He also noted that the last medication was used to treat amoeba. In his view these drugs had no relationship to the injuries sustained in the bomb blast. Based on unchallenged evidence of DW 2 I come to the conclusion that the claim submitted to the defendant by PW 17 was falsified and I thus answer the first issue in the affirmative.

b. Whether the plaintiff is entitled to the reliefs sought;

153. On this issue, the plaintiff’s counsel submitted that the dismissal of Morris from employment did not follow the procedure laid out in the CBA and the staff manual and that the plaintiff was entitled to compensation for his unlawful termination. Counsel contended that given his rank at the bank, the loss of livelihood that was occasioned by his dismissal and the fact that he could not thereafter obtain gainful employment as his name had already been tarnished and listed in the Credit Reference Bureau (CRB) by the defendant, entitled the plaintiff to an award not lower than the sum of Kshs. 14,000,000/=.

154. The defendant’s counsel defended the bank’s decision to dismiss Morris from employment by stating that he had uttered a fraudulent medical claim. Counsel was emphatic that the plaintiff’s termination was lawful. He also submitted that PW 17’s terminal dues had been credited into his Sacco account and further argued that the plaintiff’s claim for general damages was legally untenable.

155. The plaintiff’s claim against the defendant was for an order that the defendant pay and account for his pension and he be paid general damages for unlawful termination. He also sought damages for unlawful dismissal including;

a.  Severance /redundancy pay - Kshs. 24,993 x ½ x 4 years - Kshs. 49,986/=

b. One month’s pay in lieu of notice - Kshs. 24,993. 00

c.  Medical expenses deducted as fraudulent while genuinely incurred - Kshs. 102,900. 00

156. In the previous legal regime, general damages were not in the class of reliefs a court could grant for unlawful dismissal. Damages for wrongful termination were the equivalent of salary the employee would have earned for the period of notice. It is evident from the evidence that the defendant failed to follow the disciplinary procedure laid out in the Staff Manual. The plaintiff testified that he had been ushered into a room by the defendant’s officers and asked to sign a resignation letter that had been dictated to him. This approach by the defendant did not meet the rules of natural justice as stipulated in the employment contract. That said, the defendant was justified in dismissing the plaintiff, since all the claims submitted by the plaintiff were fraudulent as shown above. However since there was procedural unfairness in the dismissal of the plaintiff, I find that he is entitled to a month’s salary in lieu of notice.

157. The claim for severance/redundancy pay is dismissed for lack of proof. The plaintiff’s claim for medical expenses fraudulently deducted is equally dismissed as there was no such deduction from his accounts as shown in the computation of his terminal benefits. (P. Exh.2 pg. 89)

158. It was also the evidence of DW2 that the plaintiff had been paid his terminal benefits. He testified that Morris was earning a basic salary of Kshs. 22,992. 00 and his terminal benefits amounting to Kshs. 19,2115. 05 was credited into his Sacco account and used to offset his Co-op Bank Sacco loan. DW1 testified that Morris had accrued 16. 38 leave days which was duly paid to him. The defendant’s computation was not challenged by the plaintiff and I thus find that he was duly paid his terminal benefits. As per P.ext.2 page 88 the plaintiff’s payslip for the month of February 1999 shows a sum of Kshs. 26098/- being his gross salary. His claim as per the plaint is Kshs. 24,993/-

159. Morris Mwadime Mwawasi is entitled to a sum of Kshs. 24,993/= being damages for wrongful termination of his services.

5TH PLAINTIFF-PW2

160.  Eric Muraya Mwangi (5th Plaintiff-Eric ) testified that on 27th August 1998 he fell down but did not notice any injury until the 10th day when his knees started swelling. He visited a doctor who treated him but the medication failed to work. When it became apparent that the fluid in his knees had to be drained he visited Dr Okumu at Luthuli Avenue to have the fluid drained. He visited the doctor in 1998 and was issued with a receipt dated 16th January 1999 which covered consultation costs, injections and lab costs. There were other several consultations that were made. He told court that he spent a total of Kshs 72,600/- and the sum was refunded. He testified that he later received a letter of dismissal because of misappropriation of funds.

161. Dw2 testified that Eric did not have any x-rays done even though he had a ruptured ligament and this begs the question whether there was any injury.  He told court that the injection given to Eric cannot be given in the sequence suggested by Eric’s medical claim forms as the medications must be administered continuously and not in staggered manner.  He told court that the injections given and the injury to the knee do not tally. He also questioned why the claims for the injuries sustained on the 7/8/98 were made in January 1999, which is about 4 to 5 months after the injury.  It was his opinion that the claims were not at all related to the injury.  He also testified that Eric’s doctor would not have had the capacity to keep the antibiotics in his office as they were high premium drugs that would only be available in the case of emergency.  He told court that doctor do not keep drugs in their cupboards as a general rule, they prescribe the drugs so that the patient can accesses them and bring them back for injection if need be.

162. The plaintiff’s counsel submitted that the claim forms were procedurally processed and duly paid. That the court in awarding the reliefs sought should be guided by Eric’s length of service, in this case 4 years at the point of termination, his rank at the Defendant’s and the relevant compensation in lieu of notice in light of the provisions of section 35 and 36 of the Employment Act, 2007.

163. The defendant submitted that Eric by his own letter of 10th May, 1999 in response to a show cause letter from the Defendant admitted that the claim forms were false and he indeed tendered an apology. The court was urged to consider the testimony of Dw2 who stated that the injections given and the alleged injury to the knee did not tally.

a) Whether the plaintiff fabricated or exaggerated any medical reports/documents submitted to the defendant for reimbursement with the intention of defrauding the defendant;

164. The first claim form is dated 3rd March 1999. Eric claims to have visited the doctor at Tiriki Lane Dispensary for consultation on 26th& 28th January 1999 and also on the 2nd, 6th and 10th February 1999. During his visits he received injections from the doctor. He claimed to have spent Kshs 14,600/- based on the receipt issued by Tiriki Lane Dispensary however the information about the facility he visited is not captured in his claim form. Dw2 argued that the antibiotics injection administered to Eric are usually done in a continuous manner.

165. Dw2 was the opinion that the injections must be administered continuously and the burden of proof shifted to the plaintiff (Eric) to adduce evidence in support of the staggered mode of administration of the medication. Since there was no evidence tendered to support the mode of administration of the medication, I find that Eric failed to tilt the scales in his favor and thus he is not entitled to his first medical claim.

166. In his second claim (Pexh. 2 page 96 and 97) were for consultations for 28th December 1998 through to 2nd, 3rd, 6th, 8th, 10th, 14th and 16th January of 1999. The total claim was for Kshs 28,000 broken down as follows; Kshs 8,000/- for consultations, Kshs 18,000/- for the cost of injections and Kshs 2,000/- for other expenses including laboratory tests. On cross examination Eric admitted that the document was blank at the back/at its second page. Dw2 also had issue with the fact that no x-rays were carried out. The receipt availed by Eric had the name of the facility he visited with the postal address, however when asked on cross examination about the physical address of the dispensary Pw2 could not recall despite having visited the facility 25 times based on the number of consultations.

167. Eric’s  next medical claim (Pexh. 2 page 99) was dated 3rd March 1999 for six consolations on the 6th, 10th, 14th, 16th, 20th and 24th January 1999. I find this claim to be fraudulent or aimed at defrauding the defendant for reasons that the previous claim already had consultations for 6th, 10th, 14th and 16th January 1999. Eric is thus not entitled to compensation of Kshs 17,200/- as per his receipt and medical claim form.

168. Eric’s final claim (Pexh. 2 page 102) is for treatment sought on the 20th, 22nd, 24th and 26th February 1999. Again in his claim form the facility from where he received treatment has not been indicated. The receipt for Kshs 12,800/- was issued by Tiriki Lane Dispensary however Eric testified that he could not remember the physical location of the dispensary despite visiting the dispensary 25 times. I find that Eric failed to prove on a balance of probabilities his claim for medical expenses.

b. Whether the plaintiff is entitled to the relief’s sought;

169. Eric sought for payment for severance/redundancy pay, one month’s pay in lieu of notice and medical expenses deducted and general damages for unlawful termination and pension.

i.     Severance/ Redundancy pay Kshs. 65,023. 15 x1/2x4 years – Kshs. 130,046. 30

ii.    One month’s salary in lieu of notice-Kshs. 65,023. 15

iii.   Medical expenses deducted as fraudulent while genuinely incurred-Kshs.20,000. 00

Dw1 testified that the plaintiffs were not rendered redundant as the defendant simply terminated their employment on the basis of misappropriation of funds.

170. The only issue remaining for the court’s consideration is whether Pw2 is entitled to 1 months’ salary in lieu of notice as there was good reason to have him dismissed. This court finds that Pw2 was dismissed on 13th May 1999 followed by his resignation which as discussed earlier had no effect on the relationship of the parties because the termination letters had already severed their relationship. Even though the defendant has proved that the termination of Eric was grounded on valid and fair reasons, the defendant failed to follow the lawful procedure and I make a declaration that the termination was unfair and unlawful. Eric is only entitled to an award of Kshs 65023/-.

171. Eric Muraya Mwangi is awarded Kshs. 65023/- being damages for wrongful termination of his services.

6TH PLAINTIFF – PW3

172.  Lucia Karimi David (6th Plaintiff-Lucia) testified that she was a subordinate staff employed by the defendant. On 7/8/1998 she sustained injuries comprised mainly of cuts her head, shoulder and thighs as a result of the bomb blast.  She was taken to M.P. Shah Hospital by a Good Samaritan and was treated at the casualty department and discharged. She got further medical attention at Kariobangi North dispensary and Jibuti Lane Clinic. She went for physiotherapy for her back and shoulder and also received injections and medication as she developed proco-asmatic. She was issued with receipts from premium x-ray services. She testified that she submitted her medical claims to the defendant, but later the defendant asked her to seek a 2nd medical opinion and referred her to Dr. Mbindyo.

173. She testified further that she was arrested by the defendant’s agent and a police officer on allegations that she had defrauded the defendant using her receipts.  She was charged alongside her husband but the court in its ruling found that no case was made against her and she was acquitted. She testified that all her claims were genuine. She told court that the defendant asked her to resign so that she could pay her loan at staff rate and her resignation letter dated 10/9/1999 was acknowledged by the defendant.

174. Dw2 testified that the injuries took place on the 7/8/1998 yet the claim is for 9/1/1999 and that the doctor prescribed injections without stating which dates which the injections were to be administered. He testified that the practice is that a doctor would inject the patient after the patient brought back the medicine for injection. He testified that the cut wounds sustained by Lucia in August would not have necessitating treatment for 5 to 6 months as they would have probably healed. He testified that if the injures were occasioned in August why would Lucia  keep off in September, October, November and December then see a doctor in February 1999.

175. Dw2 testified further  that investigations carried out revealed that the receipts allegedly issued by Dr Kariuki of Kariobangi North shop dispensary, Puriza chemist, premium x-ray services, Mfangano pharmaceuticals, Jibuti lane clinic and Hollywood pharmacy were fraudulent. Pw3 was dismissed for misappropriating fund to a tune of Kshs 48,540.

176. The plaintiff counsel submitted that Pw3 has made out a case of unlawful termination and is therefore entitled to the reliefs sought.

177. The defendant submitted that Lucia admitted on cross examination that the owner of Hollywood from where she was allegedly issued with a receipt appearing at page 129 of P.Exh.2 disowned that receipt.  They submitted that the cut wounds sustained in August would not be necessitating the kind of treatment reflected in Lucia’s medical claim and the only logical conclusion would be that Lucia fabricated, exaggerated and/or faked her medical claims. It was submitted that submitting false medical claims aforesaid breached Lucia’s  terms of employment and the Defendant was entitled to invoke the provisions of clause A5(a) of CBA which provided for instant dismissal.

a. Whether the plaintiff fabricated or exaggerated any medical reports/documents submitted to the defendant for reimbursement with the intention of defrauding the defendant;

178. The first medical claim (Pexh 2 page 118) is dated 25th January 1999. Lucia seeks to be reimbursed Kshs 8,770 made up of consultation fee of Kshs 400/-, cost of injection amounting to Kshs 4,120/- and physiotherapy amounting to Kshs 3,850/-. In her claim form it is indicated that the services were sought from Kariobangi North Dispensary and Puriza Chemist Limited. It would then be expected that a computation of the receipt issued by Kariobangi Northshop Dispensary and Puriza Chemist Limited would amount to Kshs 8,770/-. To the contrary a computation of the costs from the two facilities amount to Kshs 11,640/-. Although Lucia claims that they bought medication from Puriza Chemist Ltd worth Kshs 4,120/- the receipt issued by Puriza Chemist Limited is for Kshs 2,870/-. In fact the amount of Kshs 4,120/- for the medication was charged by Kariobangi Northshop Dispensary despite the fact that Pw3 bought her medication from Puriza Chemist Ltd. It therefore follows that her claim for Kshs 8,770/- was not genuine.

179. The second medical claim form (Pexh. 2 page 121) dated 4th February 1999 indicates that the Lucia had a total of 4 consultations, injections and physiotherapy costing Kshs 8,800/-. Dw2 testified that he testified that the receipts do not justify the sequence of treatment given to Lucia. Although the dates which Lucia visited the dispensary is not indicated, she was issued with a receipt from Kariobangi Northshop Dispensary. I find that Lucia is entitled to the compensation of Kshs 8,800/-.

180. I now turn to the third medical claim dated 15th January 1999 (Pexh 2 page 124). Dw2 testified that Lucia is not entitled to compensation for her claim submitted on 15th January 1999 because she was only charged consultations for 3 days yet injections were to be administered for 10 days.  I disagree with the observations of Dw2, on the ground that it not necessary to schedule a consultation every time an injection is to be administered. The only issue with Lucia’s claim is that physiotherapy charges are set out as Kshs 5,100/- while in the receipt issued by Kariobangi Northshop Dispensary shows physiotherapy costs amounted to Kshs 3,500/-. The only logical conclusion for Lucia’s inflation of physiotherapy cost was so that she could pocket the funds.

181. Her final medical claim was dated 8th February 1999. Lucia in her claim indicated that she had 5 consultations for which she paid Kshs 2,500/- , Kshs 1,400/- for the cost of the injections and Kshs 8,000/- for physiotherapy costs. She presented a receipt from Jibuti Lane Clinic in the amount of Kshs 11,900/- together with a receipt issued by Hollywood Pharmacy Ltd for medication worth Kshs 15,400/-. On cross examination Lucia testified that the owner of Hollywood Pharmacy (from where she allegedly bought her medication) testified against her in the criminal trial and confirmed that the receipt which she presented to the defendant was forged.

b. Whether the plaintiff is entitled to the reliefs sought

182. Lucia is not entitled to severance pay as it has been proved by the defendants that the plaintiffs’ were not rendered redundant but were summarily dismissed. On the issue of pension, Pw3’s pension dues amounting to Kshs.187,113. 55/- were paid to her through her bank account and this fact is evidenced by her bank statement produced as Pexh 2 at page 136. Dw1 testified that Pw3’s liability with the bank included the following;

·   House loan – Kshs 1,144,384. 40

·   Card expenses - Kshs 48,540. 00

183. Although those were her liabilities with the bank, Dw1 testified that that Lucia was not entitled to recover medical expenses as the defendant investigated and found the claims to be false. Lucia claimed for medical expenses deducted and having proved that she genuinely claimed for Kshs 8,800/- in her medical claim dated 4th February 1999, she  is entitled to compensation of Kshs 8,800/-.

184. The plaintiffs’ have proved that the defendant did not follow the laid down procedure in their dismissal Lucia is thus entitled to one month’s salary in lieu of notice in the amount of Kshs 25,607/- subject to the relevant statutory deductions.

185. The plaintiff submitted that the loss of livelihood that was occasioned pursuant to Pw3’s dismissal and the fact that she could not thereafter obtain gainful employment as her name had already been tarnished and listed in the Credit Reference Bureau (CRB), the court should consider an award not lower than the sum of Kshs. 13,000,000/=. As held above, general damages were not in the class of reliefs awardable under the previous legal regime.

186.  Lucia Karimi David is awarded Kshs 25,607/- being one month’s salary for damages for wrongful dismissal of her services and Kshs. 8,800/-being a refund  for medical expenses deducted.

7TH PLAINTIFF- PW1

187. George Jacob Ocholla (7th Plaintiff- Jacob) a clerk with the defendant, testified that he is seeking Kshs 198,000/- towards the medical expenses which were deducted by the defendant from his final dues. He recalled that on the material day while he was in the banking hall, a bomb exploded and as a result he sustained cut injuries on the head and right hand. He told court that he was treated for the injuries but had to make further consultations with Dr. Njoroge, an ear nose and throat specialist, for an injury in his ear. He spent a total of Kshs 191,000/-. After a meeting with the defendant’s Risk & Insurance Manger, he was assured that he was entitled to a cover of Kshs 200,000/-. Jacob testified that through a letter dated 10th May 1999 the defendant asked him to show cause why his claim should not be treated as fraudulent. He was later suspended and his employment terminated on 13th May 1999.

188. Dw2 testified that Jacob was given diflucan which is for the treatment of fungus and not the injuries sustained by Jacob during the bomb blast. He noted that Jacob was also given antibiotics and steroids for the treatment of his injuries. He however criticized the treatment plan of Jacob’s doctor as he questioned why Jacob was not given a jab of tetanus injection which was the appropriate treatment plan. He also pointed out that it was unusual for Jacob to have sought 7 consultations during the period of 21st September 1998 to 27th September 1998. He questioned the amount under PExh. 2 for reasons that there were no medical investigations that had been carried out on Pw1 yet he was issued with medication. He also added that Jacob ought medical services from a small facility and it was unlikely that he would have incurred Kshs 35,160/-for the services. He also testified that it was questionable why the injuries sustained had not healed in 2weeks/or 1 month as is with most minor cuts. It was his conclusion that the money claimed did not correspond with cost of the injuries (minor cuts).

a) Whether the plaintiff fabricated or exaggerated any medical reports/documents submitted to the defendant for reimbursement with the intention of defrauding the defendant;

189. Jacob claims that he is entitled to a compensation of his medical expenses which were deducted by the defendant from his dues on the defendant’s allegations that his claims were fraudulent. Jacob’s medical claim form dated 8th February 1999 is (PExh. 2 at Page 144). Jacob testified that he had sought treatment from Dr Mugoya of Uzima Medical Clinic and was issued with a receipt for the medical services sought for consultations which were on 23rd, 25th, 27th and 29th January 1999. Dw2 testified that first medicine administered as per the claim form is Diflucan which is used in the treatment of fungus. He doubted the treatment plan by the doctor as there was no evidence of the wounds being dressed. I am persuaded with the opinion of Dw2 that the issuance of an antifungal drug for treatment of cuts was not necessary unless such treatment was for consultation on medical conditions that were unrelated to the injuries sustained from the blast which the defendant was not obliged to pay.

190. The next medical claim form is undated but was for Jacob’s claim after he visited Uzima Medical Clinic on the 2nd -7th August 1998 and on the 10th August 1998 (Pexh2 page 147).  For his consultations he was charged Kshs 3,600/- and Kshs 24,500/- for x-ray and laboratory tests. Dw2 testified that it was un-procedural to have an x-ray lab in the doctor’s office as the doctor would probably refer patients to facilities equipped with the said items. He was issued with a receipt on 9th February 1999 for the amount of Kshs 35,260/-.While Jacob  insists that his claim is genuine, the receipt is for treatment sought on 2nd, 3rd, 4th, 5th and 6th August 1998, days before the bomb blast. Since there are no proper records to show what treatment was applied to the Jacob on the 7th and 10th of August 1998 it is not possible that I can grant him compensation for Kshs 35,260/-. If at all the claim was genuine as alleged then Jacob would have only claimed the amounts utilized for injuries sustained on the 7th and 10th August 1998 after the bomb blast, but seeking to be compensated for his visits made before the blast would be contrary to the defendant’s instructions which was that the employees could claim any expenses incurred for treatment due to the injuries sustained as a result of the Bomb Blast. Dw2 also argued that the receipt or medical claim did not describe the surgical procedure for which Pw1 was charged Kshs.20, 000/=.  On cross examination Pw1 testified that that Uzima Medical clinic did not have theatre and this further fortifies the reason why he is not entitled to that claim.

191. Jacob’s final claim form is undated. He made a claim to be reimbursement Kshs 24,840/- for treatment sought on 21st-27th September, 1998 (Pexh. 2 page 149). Dw2 testified that it is not clear what the consultations were for. Dw2 told court that by September Pw1’s injuries would have healed as minor cuts injuries take 2 weeks to heal.

192. Although Jacob sought treatment for his injuries in the month of August and September 1998 as well as the month of January 1999, none of his receipts were issued at the time of treatment. His explanation for the discrepancy was not convincing, Jacob explained during cross examination that he received treatment in trust and made the payments later. Having considered the each of Jacob’s medical claim in totality, a reasonable employer would have decided to dismiss him on the basis of presenting fabricated receipts for the sole purpose of misappropriating funds.

b. Whether the plaintiff is entitled to the relief’s sought;

193. Jacob also seeks severance pay and one month in lieu of notice and medical expenses deducted.

a.  Severance / redundancy pay Kshs. 45,352x12 years- Kshs. 544,224. 00

b. One month’s pay in lieu of notice- Kshs. 45,352. 00

c.  Medical expenses deducted as fraudulent while genuinely incurred- Kshs. 198. 000. 00

Dw2 testified that there was no redundancy as the plaintiffs were dismissed as a result of plaintiffs’ fraudulent claims. Pw1’s prayer for severance/redundancy therefore fails.

194. Although there was good reason to dismiss Pw1 the procedure for his termination was flawed. Jacob is not entitled to the medical expense which were deducted.

195.   George  Jacob Ocholla  is entitled to one months’ pay of Kshs. 44,067/- for wrongful termination of his services by the defendant.

8TH PLAINTIFF- PW9

196.   Mary Mwikali Kivuwa (8th Plaintiff- Mwikali) recalled that on 7/8/1998 she was in vehicle and on her way out of the office when she heard a blast and found herself at Kenyatta National Hospital. She testified that she lost six teeth on the right side, had cuts on the knees, forehead, left finger and at the elbow.  She also sustained injuries at her back, chest and ears.  She testified that she stayed in Kenyatta for a week, at home for a month and reported to work in October.  She testified that she saw Dr Waititu at Eastleigh in his clinic on the 13th, 14th and 15th and paid kshs.1,500/= for every consultation. She was bought the medication prescribed at a chemist and claimed Kshs.16, 040/= which was approved.  She recalled that on 9/2/1999 despite her previous treatment she collapsed on Moi road and was treated by a doctor nearby for three days.  She also consulted, Mashley Owino who is a dentist, and her teeth were replaced. She had injured her ear drums and could hear well but she was treated by Dr. Warugongo. She told court that the defendant terminated her services on allegations that she had given false medical claim of the bomb blast.

197. Dw2 testified that Mwikali’s treatment was for hemorrhoids and that her consultations did not relate to the injuries she claims she sustained. He pointed out that there was no mention of loss of 6 teeth in any of her visits/consultations. She has claim forms for treatment of typhoid and malaria and the same do not relate to her injuries.

198. The plaintiff submitted that although there was a medical insurance compensation up to a maximum of Kshs. 200,000/-  that she sought  reimbursement of all medical expenses incurred and that  some of her medical claim forms appear on pgs 165-170 of the plaintiff’s exhibit 2. The plaintiff contends that all Mwikali claim forms were procedurally processed and duly paid.

199. It was submitted further that Mwikali has made out a case of unlawful termination and is therefore entitled to the reliefs sought. That  given Mwikali’s  rank at the Defendant bank at the time of termination and the loss of livelihood that was occasioned, the court should consider an award not lower than the sum of Kshs. 10,000,000/=.

200. The defendants in their submissions advanced that the evidence of Dw2 indicate that Pw9 was treated in respect for haemorrhoids (pg. 390), malaria, typhoid (page 391-392) and anti-fungi, all of which were not related to the alleged injuries. it was further submitted that the medication given in the medical claim form appearing at page 9-10 of D. Exh.9 was related to hyper acidity whereas the one indicated on the claim form at page 18-19 thereof was related to enzyme condition which had no relationship with the injuries complained of.

a. Whether the plaintiff fabricated or exaggerated any medical reports/documents submitted to the defendant for reimbursement with the intention of defrauding the defendant

201. In the month of January, Mwikali had 12 consultations on the diverse dates of 6th-8th, 13th-15th, 21st- 22nd and 27th-30th January 1999. For her consultations on 6th- 8th January 1999, the claim at page 1 of Dexh 9, she sought to be reimbursed Kshs 5,050 for the cost of consultations, laboratory tests and injections. Dw2 testified that the claim did not relate to her injuries as the injuries could not have persisted until January 1999. He also testified that the Mwikali was given an antifungal which does not relate to her injuries, while he could not make out what the 3rd medicine was.

202. At page 13 of Dexh 9 is the plaintiff’s claim for consultation at Ideal Medical clinic between the periods of 13th-15th January 1999 and seeks reimbursement for Kshs 16,040. Dw2 testified that the medication and the drugs xylobroct rectal ointment that was given to Mwikali  for 10 days and the two subsequent treatments relate to treatment in the anal rectum and not the injuries that were sustained as a result of the blast.

203. On 21st and 22nd January she received treatment and claimed for reimbursement of Kshs 2,120/- and Kshs 31,096/- for costs incurred at Ideal medical clinic and Lotus pharmacy respectively. Dw2 testified in the claim form there was an amount claimed for injection yet as per Mwikali’s medication, there was no prescription for an injectable. He also testified that the medications were antibiotics and antifungals and that they were not for treatment of the injuries sustained by Mwikali.

204. She claimed reimbursement of Kshs 28,050 for treatment received after her consultations on 27th-30th January 1999. Dw2 testified that the medication did not relate to the injuries sustained by Mwikali. She also received treatment on 22nd- 27th December 1998. Dw2 testified that the treatment given was for hyperacidity and dose not relate to her injuries.

205. Mwikali  also had a medical claim form for consultation done on January 1999 where she paid Kshs 2,010 to Ideal Medical Clinic and Kshs 31,050 to Lotus pharmacy on 15th February 1999. Dw2 testified that the receipts from Ideal Medical Clinic and Lotus pharmacy did not relate to the consultation of 15th January 1999.

206. Having considered the totality of the evidence placed before the defendant at the time of Mwikali termination, I find that there was sufficient reason to commence a disciplinary process with a view to terminate her services on the grounds of fraudulent medical claims.

b. Whether the plaintiff is entitled to the reliefs sought

207. Mwikali seeks the following;

i.    severance pay of Kshs 102,000/-,

ii.    medical expenses incurred in the sum of Kshs 150,753 and;

iii.   One month’s salary in lieu of notice Kshs. 17000/-.

208. Dw1 testified that Mwikali’s claim for Kshs 150,753/- has no basis as the amount was not recovered for reasons that she had no money in her account. In the circumstance, her claim for compensation of incurred medical expenses therefore fails.

209. Mwikali claimed for severance pay yet her position was not declared redundant and thus she is not entitled to the same. She is not entitled to the claim for general damages of Kshs. 10,000,000/= on the basis that there is no justification in seeking compensation for unfair termination as well as general damages for unlawful termination.

210. The plaintiff having proved that the procedure for her termination was unfair, she is thus entitled to one month’s salary in lieu of notice. According to her pay slip her basic pay was Kshs 17,230. However since parties are bound by their pleadings and having sought the amount of Kshs 17,000/- in her plaint.

211.   Mary Mwikali Kivuwa is awarded Kshs 17,000/- as one month’s salary for wrongful termination of her services.

9th PLAINTIFF-PW24

212.  Florence Aoko Ng’ong’a (9th Plaintiff-Florence  ) testified that she was cut by glass on her right leg and her right hand and also had discomfort in the chest, stomach, eyes and ears due to the bomb blast. She recalled that after receiving treatment she submitted medical claim forms for reimbursement of her medical expenses. Afterwards, she received a letter from the bank alleging that she had misappropriated a sum of Kshs. 149,000/= and was subsequently dismissed from employment by a letter dated 13th May 1999. She testified that she was ill advised by the secretary of personnel to write a letter resigning from employment and admitting to defrauding the bank. She told the court that she had worked at the bank for over 20 years and thought that if she wrote the letter she would be paid for the years she had worked at the bank. She complained that her eyes still watered, her right hand had no strength to work and her right leg still gave her problems at night.

213. In response, DW1 stated that Florence had submitted a claim worth a total of Kshs. 149,000/= to the defendant for injuries allegedly sustained in the blast. He stated that some of the various medical claims she made were misplaced during investigations which had been carried out jointly by the bank and the Central Bank. He stated that the investigations revealed that receipts issued by Dr. Tanga Audi located at Afya Centre were fraudulent and the plaintiff was dismissed from employment for misappropriation of funds.

214. The defendant also called DW 2 who interrogated and challenged the plaintiff’s claim.

a. Whether the plaintiff fabricated or exaggerated any medical reports/documents submitted to the defendant for reimbursement with the intention of defrauding the defendant;

215. Florence told the court that after the blast she saw Dr. Tanga Audi at his clinic located at Afya Center where her wounds were treated and dressed. She testified that although the building was close to the scene, it had not been affected by the blast. She stated that she visited the doctor 7 times in November 1998 and was charged a total of Kshs. 35,000/= which she paid on 10th February 1999. Florence testified that Dr. Audi filled her claim form on 10th February 1999 and she submitted her claim for a sum of Kshs.35,000 /= on 17th February 1999 (P Exh. 2 pg 175 & 176).

216. In his testimony DW2 expressed doubts as to whether the claim related to the injuries sustained on the day the blast occurred. He pointed out the treatment was done 3 months after the injuries and the claim made in February 1999. He also observed that there was a claim for Kshs. 8,000/= for injections although the medication that was administered by injection had not been profiled in the treatment schedule. There was no evidence tendered before the court to counter the assertions made by DW2. I also observe that the plaintiff’s claim form did not specify the days when the she purportedly saw the doctor in November 1998. Additionally, her testimony that she paid the entire sum of Kshs. 35,000/= in February 1999 after being treated three months earlier in November 1998, left a lot to be desired. In my view the claim submitted by the plaintiff on 17th February 1999 was questionable and the defendant was right in rejecting it.

b. Whether the plaintiff is entitled to the reliefs sought;

217. Florence  sought judgment against the defendant for an order that the defendant account and pay her pension, general damages for unlawful dismissal and consequential loss of employment and damages for unlawful dismissal/redundancy including;

a.Severance/redundancy pay - Kshs.21,137 x 20 years - Kshs.422,740. 00

b.One month’s pay in lieu of notice - Kshs. 21,137. 00

c.Medical expenses deducted as fraudulent while genuinely incurred -  Kshs. 149,000. 00

d.Pension not paid - Kshs. 250,000/=

218. DW1 testified that after her request to resign was approved by the bank, Florence was informed that the money she had misappropriated would be deducted from her terminal dues but her net dues of Kshs. 13,759. 35 were insufficient to cover the amount. He stated that her net dues and her accrued leave days were credited into her account and the bank proceeded to recover a month’s salary in lieu of notice from her because she had resigned. In his view, Florence was not entitled to severance pay or a month’s salary in lieu of notice since she had been summarily dismissed and later resigned on her own volition.

219. I agree with the defendant’s contention that the plaintiff was not entitled to severance pay as she did not prove that her services had been declared redundant by the defendant.

220. Despite the fact that the defendant had good reason to dismiss the plaintiff as shown in issue (a) above, the process adopted in her dismissal did not meet the standards set out in the CBA and Staff Manual. The plaintiff is therefore entitled to damages for procedural unfairness in the termination of her services by the defendant. The measure of damages the plaintiff is entitled to is a month’s salary in lieu of notice. Under the previous legal regime, general damages were not awardable for wrongful dismissal. The plaintiff’s claim for general damages of Kshs. 12,500,000/= is therefore rejected.

221. DW1’s evidence that Florence’s terminal dues were paid was not challenged. There was also no proof that the sum of Kshs. 149,000/= had been deducted from the plaintiff’s account and her claim for the same is rejected.

222. The plaintiff also made a claim for unpaid pension. During cross examination DW1 admitted that all plaintiffs were part of a pension scheme. He made no mention of payment of the plaintiff’s pension in his statement. Despite making a specific claim for unpaid pension of Kshs. 250,000/=, the plaintiff did not lead evidence to prove her claim and the same is therefore rejected.

223. For the reasons given above, I award Florence Aoko Ng’ong’aa month’s net salary of Kshs. 21,137/= as damages for wrongful termination of her services.

10th PLAINTIFF-PW15

224.  Godfrey Mathia Henya (10th Plaintiff- Godfrey) testified that he sustained a cut on his head and got injuries on his chest, right leg, spinal code. He also lost 5 teeth and broke 2 teeth as a result of the bombing. A Good Samaritan took him to Kenyatta National Hospital but due to the crowd there, he was instead taken to KMCC medical for treatment. He testified that he got treated and went on sick leave for a month from 22nd September 1999 to 25th October 1999. Godfrey stated that he made a medical claim for Kshs.11, 000/= which was approved and subsequently made claims for Kshs.150, 000/= and for Kshs.32, 000/= which were also approved.

225. He recalled that he received a letter dated 5th October 1999 claiming that he had defrauded the bank a sum of Kshs. 57,000/= and got dismissed from employment by a letter dated 12th October 1999 while still on sick leave. He responded with a letter expressing his shock at having been dismissed while still on sick leave. He testified that when he took his letter to the bank, he was advised to resign so as not to lose his benefits. He wrote the resignation letter which was received and stamped on 1st November, 1999. Later on, Godfrey received a letter dated 4th September 1999 from head office, asking him to get a second medical opinion which he did by visiting Prof. Mbinyo. He stated that he had not fully recovered, although the court noted that there was barely any scar on his head.

226. During cross examination Godfrey explained that when he could not get assistance at Kenyatta National Hospital, he went to a clinic in Kinoo which was ran by Dr. Kungu Mwaura, a clinical officer who operated near his place. The doctor attended to the cut on his head, removed his broken teeth and also dressed the injury on his right leg with a bandage. He explained each of his medical claims and added that at first he had spent his money and even exceeded the limit of Kshs. 200,000/= for treatment before he made his claims. He added that he had been working at the bank for 20 years and his basic pay was Kshs. 245,832/= p.a. He also testified that he had an account with the bank which had been closed and he had not been able to access it since his dismissal.

227. DW1 told the court that Godfrey was dismissed from employment because investigations revealed that his medical claim totaling Kshs.57,000/= from Dr. G.K. Mwaura was fraudulent. DW 2 explained that if the plaintiff had suffered cuts as he alleged they were already healed by the time he was purportedly treated. He also testified that the medication given under the claims had been duplicated and some did not tally with the injuries sustained.

a. Whether the plaintiff fabricated or exaggerated any medical reports/documents submitted to the defendant for reimbursement with the intention of defrauding the defendant;

228. Godfrey stated that the first claim he made was for a refund of Kshs.10, 000/= for 5 consultations on 5th, 6th, 10th, 15th and 21st December 1998. The amount included consultation fees, injection costs and other expenses such as laboratory tests (P. Exh. 2 pg. 183 & 184). DW2 testified that the claim did not reflect the injuries sustained in bomb blast, as they came three months later. He explained that the plaintiff had been given an antibiotic for a week and also got Buscopan and Volten which were painkillers. According to DW2 by the time the medication was dispensed the cuts the plaintiff had sustained in the bomb blast ought to have healed.

229. Godfrey stated that he had further consultations with Dr. Mwaura on 8th, 9th, 11th, 14th and 16th December 1998. He submitted a claim form for Kshs.15, 000/= which was approved by the defendant on 3rd February 1999 (P. Exh. 2 pg. 186). DW2 noted that the treatment listed in the claim had been replicated for alternate days and the profile of the treatment was similar to the one in the earlier claim as well as the medicine and the number of days. In his view it did not make sense to duplicate the medicine on alternate days.  He added that the medication given by the doctor was not the kind a doctor would readily have in his clinic. DW 2 also pointed out that the receipt for Kshs.15,000/= had been issued in January 1999 for treatment in December 1998.

230. Godfrey  also testified that he had consulted Dr. Mwaura on 25th, 26th , 28th , 29th and 31st December 1998 and submitted a claim form on 17th February 1999 for a sum of Kshs. 32,000/= ( P. Exh. 2 pg. 188 &189). For this claim DW 2 testified that the medicine administered was used to treat pelvic ulcers disease and had no relationship with the injuries. He also noted that the medicine administered to the plaintiff had no duration or dosage and was totally unrelated to the claims.

231. Upon considering both the plaintiff’s and the defendant’s evidence, I am of the view that the three claim forms submitted by Godfrey to the defendant were not genuine. The defendant adduced evidence showing that the medication given to the plaintiff had been duplicated in the first two claim forms pertaining to alternate days in December 1998. DW 2 also testified that the medication given to the plaintiff did not relate to the injuries he sustained in the bomb blast.  It was also noted that the receipt annexed to the second claim form had been issued on 11th January 1999 for treatment administered in December 1998. Godfrey did not call evidence to challenge the defendant’s evidence and I therefore answer this first issue in the affirmative.

b. Whether the plaintiff is entitled to the reliefs sought;

232. Godfrey made a claim for payment and account of his pension, general damages for unlawful termination and loss of employment as well as damages for unlawful dismissal including;

a.Severance / redundancy pay Kshs. 20,712. 55 x 20 years- Kshs. 414,251. 00

b.One month’s pay in lieu of notice- Kshs. 20,712. 55

c.Medical expenses deducted as fraudulent while genuinely incurred- Kshs. 57,000. 00

233. Godfrey’s  claim for severance/ redundancy was not proved and the same is dismissed for the reasons given in this judgment. His claim for general damages is similarly dismissed as general damages were not in the class of reliefs awardable under the previous legal regime.

234. Godfrey is however entitled to damages, being a month’s salary in lieu of notice for wrongful termination since it was clear from the evidence that he was not accorded a fair hearing before the disciplinary committee as stipulated in the Staff Manual. It is important to point out that although the procedure followed by the defendant to terminate the plaintiff’s employment was wrong the defendant had justified reasons to terminate his contract.

235. DW1 testified that at the time Godfrey left the bank his gross pay was Kshs. 21,806. 00. He stated that Godfrey’s net amount after P.A.Y.E deductions and recovery of one month’s salary in lieu of notice was Kshs. 3,619. 35 which was credited into his current account. DW 2 also testified that the plaintiff’s fraudulent medical claim was never recovered by the bank.His assertion that medical expenses were not deducted was supported by his computation of the plaintiff’s terminal benefits (D. exh.6 pg. 4). Godfrey is therefore not entitled to reimbursement of medical expenses as they were not deducted from his account in the first place.

236. Godfrey did not produce any evidence to support his claim for pension. He however testified that he was unable to access his terminal benefits since his account had been frozen. There was no indication that Godfrey’s terminal benefits had been used to settle liabilities he had with the defendant. It is thus not clear why the plaintiff was denied access to his dues. He did not however contest DW2’s computation of his terminal benefits. I therefore find that he is entitled to Kshs. 3,619. 35 being his net dues.

237. I award Godfrey Mathia Henya Kshs.24,105. 35/= computed as follows;

a.  Kshs.20,486/= being a month’s salary for wrongful termination; and

b. Kshs. 3,619. 35 being his  terminal benefits.

11TH PLAINTIFF-PW11

238.  Joel Busie Wanyonyi (11th Plaintiff- Joel) testified that he was employed by the defendant in 1992 and had been working for 8 years before the Bomb Blast attack. He stated that he sustained injuries on his right hand from the elbow, on his right leg from the knees to the waist and on the back of his head as a result of the blast.  He was attended to by one Dr. Kimani at Uhuru Medical Clinic in Eastleigh within Jericho estate and resumed work after he had been treated and discharged.

239. Dr. Kimani referred him to Dr. Maringo, a physiotherapist in Eastleigh at Al- Fatah Medical Centre and Laboratory Services, as he could not walk and had trouble sleeping. Joel produced his claim form, which was signed by Dr. Kimani on 18th February 1999 and testified that the doctor had given him a receipt for Kshs. 17,267/=. He also produced a second receipt for Kshs.18,130/= which had been issued by Dr. Maringo. He testified that his claim had been approved, though he could not remember when.

240. Joel testified that when he got suspended by the Bank, he went to Dr. Maina seeking confirmation that he had been to his clinic. He wrote a letter dated 10th August 1999 in response to the letter of suspension denying misappropriating the defendant’s funds but he was nevertheless dismissed from work on 5th October 1999. Joel told the court that at the time of dismissal, he was still on treatment and had a loan which the bank ordered him to repay and when he was unable to repay the loan, the bank sold off his land. He was emphatic that he had not resigned from the bank as indicated by the bank. He also stated that since then he had not gotten employment and was still undergoing treatment for his leg.

241. During cross examination, Joel stated that Dr. Kimani had offered him first aid for the injury on his head.  He then saw Dr. Maringo on 12th February 1999 and on 18th February 1999 and was issued him with a receipt for the two consultations.  Joel also told the court that Dr. Kimani and Dr. Maringo were independent and he had paid each doctor his money but stated that Dr. Kimani had charged him on behalf of Dr. Maringo and issued him with a receipt. He testified that Dr. Maringo had straightened his leg and waist and had stitched his hands and knees. He denied that his medical claim was meant to defraud the bank and stated that it had been approved by people who were still working with the bank. He also testified that he had had a staff current account which he was not able to access after the dismissal.

242. In response, DW1 testified that investigations had revealed that the receipts allegedly issued by Dr. Kimani and Al Fatah Medical Centre were fraudulent. Further, DW 2 testified that the medication listed in Joel’s claim had nothing to do with the bomb blast. The 1st and 3rd drugs, Zantac and Malot, were used to treat peptic ulcers disease while the 2nd drug was used for severe UTI. DW 2 stated that the Joel’s  medical report indicated that he had suffered haematemisis and insomnia which did not relate to the injuries he claimed to have suffered and the lab period was also way too long. He stated that the fact that the title of the person who had treated Joel was not indicated and an overdose of the 2nd drug which had been prescribed created a lot of suspicion on whether the individual was a qualified doctor.

243. DW1 went on to state in his written statement that Joel had been issued with a show cause letter dated 5th August 1999 and suspended from duty on 6th August 1999 for misappropriating the bank’s funds totaling to Kshs. 35,397/=. Upon receiving his reply dated 10th August 1999, Joel was dismissed from the Bank’s employment vide a letter dated 5th October 1999. Through a letter dated 8th October 1999, Joel requested to be allowed to resign and the request was accepted by the bank.

a. Whether the Plaintiff fabricated or exaggerated any medical reports/documents submitted to the Defendant for reimbursement with the intention of defrauding the Defendant;

244. Joel claimed that his medical expenses worth Kshs. 35,397/= had been fraudulently deducted by the defendant. He insisted that his expenses were properly incurred and his claim had been procedurally processed and duly paid. Conversely, the defendant argued that based on the evidence and particularly that of DW 2 it was clear that the plaintiff had exaggerated the medical claims he had submitted to the defendant.

245. Joel produced a medical form dated 19th February 1999 which he had submitted to the defendant and receipts worth Kshs. 35,397/= in support of his claim. The first receipt for Kshs. 17,267/= was issued at Uhuru Medical Centre Pharmacy on 18th February 1999 and the second receipt for Kshs.18, 130/= was issued on the same day by Uhuru Medical Centre.

246. It is not clear why the two receipts for a total of Kshs. 17,130/= issued by Al- Fatah Medical Centre and Laboratory Services at page 27 and 28 of the plaintiff’s further list of non-agreed documents (P. Exh 2) were not attached to the medical claim form submitted to the defendant. In his evidence, Joel testified that the first receipt for Kshs. 17,267/= was issued to him by Dr. Kimani and the second receipt for Kshs. 18,130/= had also been written by Dr. Kimani on behalf of Dr. Maringo yet the two doctors were independent. The receipt for Kshs. 18,130/= included Kshs. 17,130/= purportedly incurred by the plaintiff at Al Fatah Medical Centre and a consultation fee of Kshs. 1,000/=. I agree with the defendant that it was highly suspicious and unlikely that Dr. Kimani would charge the plaintiff for services he had received at a different facility. It is also noteworthy that the plaintiff did not mention that he had visited Al Fatah Medical Centre in his written statement dated 22nd August 2013. I therefore find that the plaintiff was not entitled to the sum of Kshs. 18,130/=.

247. Regarding the receipt for Kshs. 17,267/= purportedly issued for medicine dispensed by Uhuru Medical Centre Pharmacy, DW2 testified that the condition and the drugs indicated in the medical report did not relate to the injuries suffered by the plaintiff. He testified that the 1st and 3rd drugs on the claim form were used to treat peptic ulcers disease while the 2nd drug was used to treat severe UTI. He also testified that the conditions that the plaintiff was said to have suffered including haematemisis and insomnia were not related to the bomb blast The plaintiff did not call evidence to counter the evidence of DW 2 by ruling out the possibility that the drugs he claimed were improperly administered could be used to cure the conditions he suffered as a result of the bomb blast.  I therefore find that the claim for Kshs. 17,267/= was sufficiently disproved by the defendant. Consequently, I find that the dismissal of the plaintiff was substantively fair.

b. Whether the Plaintiff is entitled to the reliefs sought

248. Joel contended that he had made out a case for unlawful termination and was therefore entitled to the reliefs sought in the plaint including;

a.Severance /redundancy pay Kshs. 34,472. 75 x7 years- Kshs. 241,309. 25

b.One month’s pay in lieu of notice- Kshs. 34,472. 00

c.Medical expenses deducted as fraudulent while genuinely incurred- Kshs. 35,397. 00

249. In his written submissions, he urged the court to factor in the length of service, his rank and the relevant compensation in lieu of notice in light of the provisions of Section 35 and 36 of the Employment Act, 2007. He also urged the court to award him general damages for the harm he had suffered as a result of the defendant’s recall of his entire house loan, freezing of his accounts and tainting of his reputation. Counsel for the plaintiff urged the court to award the plaintiff a sum not less than Kshs. 20,000,000/=.

250. The defendant argued that the plaintiff had requested to be allowed to resign from employment after owning up to uttering false medical claims and he was therefore not entitled to an award for wrongful termination. The defendant also insisted that the plaintiff had been paid his terminal benefits.

251. In his testimony, DW 1 listed the plaintiff’s liabilities to the bank as;

a.  House loan- Kshs. 298,686/=

b. Card expenses- Kshs. 7,438. 40

252. He also indicated that Joel used to earn a basic salary of Kshs. 34,265/= and his net dues were Kshs. 50,574. 50. Kshs. 2,488. 80 was credited into his Co-op card account, while Kshs. 48,085. 70/= was credited into his House loan account. DW 2 further stated that Joel had accrued leave days totaling to Kshs. 95,427. 55 and leave allowance totaling to Kshs. 1,675. 20 which was duly paid to him as per the computation of terminal benefits.

253. As I have already held above, the plaintiffs did not prove that the defendant had declared their services redundant. The plaintiff in this case similarly failed to show that his services were superfluous or his office had been abolished by the defendant. I thus dismiss his claim for severance/redundancy pay.

254. Joel is however entitled to a month’s pay in lieu of notice as he was not given an opportunity to be heard in accordance with the disciplinary procedures stipulated in the Staff Manual. He did not challenge DW 2’s evidence that his dues had been used to settle his debt and his leave days and leave allowance had been paid. I reiterate that the measure of compensation for a breach of a contract is payment in lieu of notice. Under the previous legal regime, general damages were not awardable for wrongful termination. The plaintiff is also not entitled to a refund of medical expenses for reasons given above.

255. The upshot is that Joel Busie Wanyonyi is awarded Kshs. 34,472/= being damages for wrongful termination of his services.

12th PLAINTIFF-PW16

256.  Richard Leposo Pulei (12th Plaintiff-Leposo) recalled that on 7th August 1998, he was at work when the blast occurred. He testified that he sustained injuries on the chest, the left leg at the knee, a deep cut on the right hand and also got injuries on the ears.  He was taken to Kenyatta National Hospital but decided to go to Ngong, as the hospital was crowded. He testified that he got treated by Dr. Yusuf at Zamzam Medical Services and Dr. Muthama at Good Health Clinic in Ngong’. He went back to work after he was treated but complained that he still felt pain in his waist and also experienced headaches.

257. Leposo testified that he submitted 6 claim forms for reimbursement of his medical expenses to the bank 5 of which were approved. He was however accused of misappropriating the bank’s funds and was issued with a dismissal letter dated 5th August 1999. He also got another letter dated 14th September 1999 for recovery of Kshs.55,330/=. He testified that since he was sacked he been able to secure work elsewhere and urged the court to grant him his claim as pleaded.

258. When  cross examined, Leposo stated that he received first aid at Kenyatta National Hospital before he went to Ngong’ where he was attended to by Dr. Muthama who was in the bank panel. He testified that he knew Dr Muthama and he would at times pay the doctor instantly and other times he was allowed to pay later. He also stated that there was no agreement between him and the doctor that his bills and denied that his bills and his family’s bills would be jumbled together. He insisted that the receipts he had produced were authentic and that his forms had been filled by the chemist and doctors he visited. Leposo also accepted that he had taken out a loan with the bank during cross examination.

259. DW1 told the court that investigations carried out by the bank had revealed that several receipts issued by Dr. Muthama, who as a registered clinical officer and Excelsior Pharmacy were fraudulent. He stated that as a result, Leposo  was dismissed from employment for uttering a false claim of Kshs. 55,330. 00/=. DW 2 analyzed the plaintiff’s claim forms and reached the conclusion that some of the medication given to the plaintiff had nothing to do with the injuries sustained in the accident. It was also his view that the plaintiff’s cuts should have healed by the time the plaintiff allegedly sought treatment from September to January 1998.

a. Whether the plaintiff fabricated or exaggerated any medical reports/documents submitted to the defendant for reimbursement with the intention of defrauding the defendant;

260. The defendant claims that Leposo was dismissed from employment for making a fraudulent claim of Kshs. 55,330/-. Regarding the claim forms dated 12th January 1999 and 23rd November 1998 for a total of Kshs. 11,800/= the plaintiff testified that the claims were justified as they had emanated from consultations he had with Dr. Muthama on 31st December 1998 and 2nd January 1999 and medicine he purchased from the doctor and from Excelsior Pharmacy Ltd. (P. Exh. 2 pg 210 to 215). He produced receipts in support of the claim and also testified that the claims had been approved on 12th January 1999 and 3rd December 1998 respectively. DW 2 assailed the claim on the grounds that the medication in the claim form dated 12th January 1999 had no bearing to the injuries. He stated that the first drug, Brufen is used to relieve pain but the second drug known as Diazepam is for sleep. He also noted that the claim form dated 23rd November 1998 indicated that a widal test had been done, yet the test was used to diagnose Typhoid which had no relation to the injuries sustained.

261. Leposo also submitted a claim for Kshs. 9,000/= on 19th January 1999. He testified that the expenses were incurred when he consulted Dr. Muthama on 7th and 9th January 1999. (P. Exh. 2 pg. 216 to 218 & pg. 231 to 232). He stated that the doctor had given him two injections for Kshs. 300/= each and also gave him drugs worth Kshs. 2,900/=. He then used the remainder to purchase medicine from Excelsior Pharmacy. DW 2 noted that Leposo had been given pain medication and had also been prescribed an anti-depressant known as Stelazine which had no relation to the injuries sustained. He observed that Leposo had also been prescribed 100 tablets of Clotan which dosage was unrelated to the injuries. DW 2 also questioned the indication in the claim form that the Leposo had been treated for cut wounds from September 1998 to January 1999 since cuts did not take that long to heal.

262. Leposo also submitted a claim form for Kshs. 8,110/= on 3rd February 1999, which was approved on the same day. (P. Exh. 2 pg. 219 to 220). To support his evidence, he annexed a receipt for Kshs. 6,810/= from Dr. Muthama and a receipt for Kshs. 1,300/= from Esidat Chemist. DW 2’s analysis of the claim was that the 1st and 2nd medication listed in the claim are aimed at treating bacterial infection and 3rd and 4th drugs were used to treat yeast infections and had no bearing on the injuries.

263. On the claim for Kshs. 7,550/= which was submitted to the defendant on 11th February 1999 and approved on 15th February 1999, (P. Exh.2 pg. 222 to 223) Leposo  stated he made the claim for consultations he had with the doctor on 31st January and 7th February 1999. He stated that a stool analysis was conducted and the doctor also prescribed drugs which he purchased from his clinic. DW 2 countered that the 1st and 2nd medicines in the claim are aimed at treating bacterial infection. He also testified that the 3rd drug is used to treat yeast infection and the 4th drug is used to treat pelvic ulcers. His conclusion was that the medication and the stool analysis had no bearing to the injuries sustained.

264. Leposo submitted another claim form to the defendant for a sum of Kshs. 7,710/= on 16th February 1999 (P. Exh. 2 pg. 225 to 226). He stated that the expenses he had claimed in the form originated from consultations he had on 17th, 24th and 31st January 1999, three injections and a laboratory test. He stated that he had also purchased drugs at the doctor’s clinic and produced a receipt to support his claim. DW 2 observed that the treatments in claim form overlapped with initial medication given to Leposo  earlier to treat bacterial and yeast infections. He also told the court that the medication and the blood, stool and urine tests indicated on the form had no relation to the injuries sustained in the bomb  blast.

265. On the final claim for Kshs. 15,050/= which was made on 23rd February 1999, Leposo  testified that when he submitted the claim to the defendant it was not approved. (P. Exh. 2. Pg. 228 to 229). DW 2 was doubtful of the medication listed in that claim form because the injuries the plaintiff claimed he had sustained would not have persisted 4 months later. He also testified that it was impossible to tell the dosage for the medicine or what was being managed from the claim form.

266. Leposo  did not call evidence to disprove the assertion that the medication and tests referred to in his various claim forms were necessary for the treatment of the injuries he sustained due to the bomb blast. Guided by the unchallenged expert opinion of DW 2 I find that the Leposo’s   claims were not genuine.

b. Whether the plaintiff is entitled to the reliefs sought;

267. Leposo’s   claim against the defendant was for an order that the defendant pay and account for his pension and he be paid general damages for unlawful termination. He also sought damages for unlawful dismissal including;

a.  Severance /redundancy pay - Kshs. 33,000 x 8 years - Kshs. 304,000/=

b. One month’s pay in lieu of notice- Kshs. 38,000. 00

c.  Medical expenses deducted as  fraudulent while genuinely incurred- Kshs. 60,000. 00

268. On the claim for severance/ redundancy pay, I find that no evidence was produced by the plaintiff to prove that the defendant declared him redundant and he is therefore not entitled to damages under that head.

269. To determine whether the plaintiff is entitled to a month’s salary in lieu of notice, I have to interrogate whether the defendant summary dismissal of Leposo  was proper. The plaintiff’s counsel submitted that no investigative report was placed before the court to justify the plaintiff’s dismissal from employment. He also submitted that the sequence of events leading to the plaintiff’s dismissal did not follow the laid down disciplinary procedures. Counsel further submitted that given his rank in the bank at the time of his dismissal, the loss of livelihood that was occasioned by his dismissal and the fact that he could not thereafter obtain gainful employment because his name had already been tarnished by the defendant, the court should consider an award not lower than the sum of Kshs. 14,500,000/=.

270. The defendant’s counsel contended that based on the evidence of DW 2 it was evident that Leposo  had fabricated his claim. He contended that the plaintiff’s action of uttering false medical claims was a breach of his employment contract and his dismissal was justified. He also argued that the plaintiff’s net dues of Kshs.14,650/40 had been credited into his Co-op card account and Co-op Bank Sacco account hence the plaintiff is also not entitled to terminal benefits or general damages which is not supported by law.

271. I have found in the foregoing issue (a) that the defendant proved that the claim forms submitted to it by Leposo were not genuine and therefore the dismissal of the plaintiff was justified. However, the defendant failed to follow the disciplinary procedure set out in the Staff Manual which required that an employee be interviewed before his termination. Thus, in as much as the plaintiff’s dismissal was substantively fair, it was procedurally unfair. The measure of damages for wrongful termination under the previous legal regime was limited to the notice period. General damages were not awardable under the repealed law. Consequently, I find that the plaintiff is entitled to a month’s salary in lieu of notice which was the notice period stipulated in the Staff Manual.

272. The plaintiff’s claim for medical expenses fraudulently deducted from his account is dismissed since the plaintiff did not prove that the claim was genuine. Further, the computation of his terminal benefits does not show that the sum was deducted from his account. (D. Exh. 6 pg. 7)

273. DW1 testified that the fraudulent claim of Kshs. 55,330. 00 was debited to the plaintiff’s current account but the bank was unable to recover the money since Leposo’s account only had Kshs.1,585. 25. He also stated that when he left employment, Leposo had a house loan of Kshs. 864,900. 00. At the time, the plaintiff was earning Kshs. 24,125. 00 and his net dues of Kshs. 14,650. 40 were credited into his Co-op Card Account and Co-op Bank Sacco Account. He testified that Leposo had accrued leave days totaling to Kshs. 34,221. 40 and leave allowance of Kshs.1,366. 30 which were duly paid to him. Based on DW 1’s unchallenged computation, I find that Leposo’s terminal benefits were duly paid. His payslip for April 1999 shows that  his gross salary was Kshs. 26,126/-

274. In the end I find that Richard Leposo Pulei is entitled to a sum of Kshs. 26, 126/= being damages for wrongful termination of his services.

13th PLAINTIFF- PW18

275.   Caroline Mweni Nzioka (13th Plaintiff-Caroline)listed the injuries she sustained as a result of the bomb blast as cuts on the hands, thigh and back. She stated that she had been hit by a heavy object on the back and claimed that she developed a cough which later turned to asthma. She was diagnosed with High Blood Pressure and diabetes after a while. Caroline also told the court that when the bomb blast occurred she was five months pregnant. She began spotting and in the process her pregnancy was terminated. She testified that she had sought medical treatment at William Ouko Memorial Clinic where she was treated by Dr. Ochieng’ who was in the bank panel. She made 17 visits to the clinic and also visited Dr Owino of Patru Clinic and Dr. Oluoch of Wambunya Medical Clinic. She testified that she had made 3 claims which had been approved by her supervisor but was subsequently dismissed from employment for making a fraudulent claim of Kshs. 118,790/=.

276. Caroline testified that when she got dismissed from employment, she tried to appeal the decision but the bank did not respond. She later saw the Chief Executive Officer, Mr. Muruiki who told her that the only option she had was to resign which she did. Caroline testified that she is a single parent of 2 sons. She recalled that when she lost her work one of her sons said he was going to look for a job but never came back after that.

277. In cross examination, Caroline stated that when she went to City Nursing Home situated along Mfangano Street she found the facility crowded and had to seek treatment at William Ouko Memorial Clinic along Sheikh Karume road. She had gone to the clinic 3 times before but had not made claims for those visits. At William Ouko Memorial Clinic, her cuts were treated and she also got physiotherapy for her back.  She testified that Dr. Ochieng’ recommended that she visit Doctor Oketch at Wambunya Medical Clinic in Umoja II estate where she lived. She admitted that she had not included details of her miscarriage in her statement but insisted that her claim was not manufactured. She also acknowledged that she had written a resignation letter admitting that her medical claim for Kshs. 41,180/= was wrongful but stated that the letter of resignation was written to enable her pay her loan at staff rates. She also accepted that she owed the bank a loan 173,255/= and card expenses of Kshs. 2958/=.

278. DW1 testified that their investigations revealed that the receipts issued by William Ouko Memorial Clinic were fraudulent. He stated that the doctor in charge confirmed that the alleged treatments, surgical procedures and physiotherapy was not conducted on Caroline and no records were available at the clinic. DW2 analyzed the plaintiff’s claim forms and stated that although there was an indication that the plaintiff had a slipped disc of the spine, there was no X-ray to confirm that assertion. He also observed that some of the medication given to the plaintiff had nothing to do with the injuries she sustained and there were also major overlaps in the medication given.

a. Whether the plaintiff fabricated or exaggerated any medical reports/documents submitted to the defendant for reimbursement with the intention of defrauding the defendant;

279. Caroline was dismissed from the employment for allegedly making a false medical claim totaling to Kshs. 118,790/=. She submitted five claim forms to the defendant for reimbursement of medical expenses she claimed were incurred as a result of the bomb blast.

280. On 17th February 1999, Caroline submitted a claim form to the defendant for seven consultations in January 1999 and the same was approved (P. Exh. 2 pg. 240 & 241). The claim was for a total of Kshs. 21,260/= including consultation fees, injection costs and drug expenses from Wambunya Medical Clinic. Caroline testified that she had also been issued with receipts from Leki pharmacy which was run by the doctor’s wife.  She explained that the 1st receipt included consultations from 22nd to 30th and stated that she paid Kshs. 10,000/= on 22nd January 1999 and when she paid the balance on 30th January 1999, she was issued with the receipt for Kshs. 21,260/=.

281. I agree with the defendant’s submissions that the plaintiff’s testimony that she paid Kshs. 10,000/= for future consultations seemed farfetched if not an outright lie. Moreover, if the plaintiff paid the sum on 22nd January 1999 as she claimed, it is expected that she would have been issued with a receipt on the same day. She instead submitted a lump sum receipt from the doctor dated 30th January 1999 for Kshs.11,600/=. In my view, the claim form approved on 17th February 1999 was questionable and the defendant was justified in rejecting it.

282. Caroline also submitted another claim form for Kshs. 23,600/= on 30th November 1998. She indicated that the claim related to 8 consultations to William Ouko Memorial Clinic the first being on 7th November 1998 (P. Exh. 2. pg. 243 & 244). DW 2 identified the 1st, 2nd and 4th medication in the claim form as pain relieving medication. He testified that the 3rd medicine was an antibiotic for an infection, the 5th was medication for Ulcers disease, and the 6th drug was a vitamin. He acknowledged that it was possible that the pain in the plaintiff’s back could have persisted to the time she sought treatment but noted that there was no X-ray to confirm that the plaintiff had suffered a slipped disc. He testified that clinics did not have the capacity to dispense the medication listed. He also noted that there was an overlap in the medication on the claim form submitted on 30th November 1998 and the claim submitted on 19th January 1999.

283. In the claim submitted on 19th January 1999 for Kshs. 28,050/=, Caroline testified that it related to five consultations she had with Dr. Ochieng’ at William Ouko Memorial Clinic starting from 3rd December 1998 (P. Exh. 2. Pg. 249 & 250). She stated that the fee included consultation fees, costs of injections, laboratory fees and physiotherapy. She also produced a receipt from the clinic in support of her claim for Kshs. 28,050/=. DW 2 testified that the first three drugs listed in the claim form were for pain, the 4th was medicine for an infection and the 5th was a vitamin.

284. Caroline also submitted another claim form from William Ouko Memorial Clinic for 9 consultations starting from 16th October 1998 (P. Exh. 2. Pg. 252 & 253). She explained that the claim for Kshs. 28,300/= included consultation fees and costs for injections, laboratory fees, physiotherapy and allied therapy. DW2 testified that the medicine was for pain but added that there was no X-ray to show that the plaintiff had a slipped disc of the back.

285. The defendant also argued that a letter dated 22nd June 1999 sent to its chief manager, Human Research Department, by Dr. Charles K. Maringo of Africa Health Services stated that he had contacted Dr. Rakwar of William Ouko Memorial Clinic who confirmed that none of the treatments, investigations, surgical procedures and physiotherapies mentioned on Caroline’s medical claims were conducted on her. In response, the plaintiff stated that William Ouko Memorial Clinic had four doctors and she was treated by Dr. Nicholas Ochieng’ at the material time. She stated that Dr. Maringo only mentioned discussions he had with Dr. Rakwar on her treatment but did not state whether he had had any discussions with the other doctors within the facility.

286. The aforementioned letter of Dr. Maringo does not convince me that the plaintiff  did not get treated at William Ouko Memorial Clinic for various reasons. Firstly, as pointed out by the plaintiff, Dr. Maringo did not say why he failed to communicate with Dr. Ochieng’ whom the plaintiff claimed she saw at the clinic. Secondly, the correspondence from Dr. Rakwar that the plaintiff had not been treated at the clinic was not availed to the court. I find the letter by Dr. Maringo to have little probative value as it is merely hearsay. DW2 also testified that he was doubtful that the plaintiff had suffered a slip disc because there was no X-ray to show that she had a slipped disc. I however note that the plaintiff made claims in paragraph 4 of the forms for other expenses which included X-ray. During cross examination, Caroline testified that X-rays had been taken at Nairobi X-ray centre. She also produced a letter from Plaza Xray Services which confirmed she had a slip disc. I therefore find that the plaintiff suffered the injury in her back as she claimed. DW 2 testified that if the plaintiff sustained the injury in her back her pain may have persisted to the time of treatment. It is therefore my conclusion that the defendant’s evidence did not prove that the claims submitted on 7th November 1998, 19th January, 1999 and 16th October 1998 were fraudulent.

287. Caroline also submitted a claim form on 4th September 1998 for a sum of Kshs. 28,300/= (P. Exh. 2. Pg. 246 & 247). She testified that the claim related to one consultation she made on the night of the bomb blast to Patru Clinic. She told the court that at the time she was 5 months pregnant and when she started bleeding during the night, her neighbour rushed her to the clinic where a D & C procedure was conducted. DW2 stated that the 1st and 2nd medication listed in the claim form were appropriate but added that the doctor had not elaborated the third medicine. Although she did not indicate that she had a miscarriage in her statement, I am inclined to give the plaintiff the benefit of doubt for the claim since it was made in good time and the medication in the claim form was also largely approved by DW2.

b. Whether the plaintiff is entitled to the reliefs sought;

288. The reliefs sought by Caroline  in her amended plaint were inter alia an order that the defendant account and pay her pension, general damages for unlawful dismissal and consequential loss of employment and damages for unlawful dismissal/redundancy including;

a.Severance/redundancy pay- Kshs. 47,079 x 11 years - Kshs.517,869. 00

b.One month’s pay in lieu of notice- Kshs. 47,079. 00

c.Medical expenses deducted as fraudulent while genuinely incurred- Kshs. 201,000. 00

289. Counsel for the plaintiff submitted that after her unlawful dismissal by the defendant, Caroline was called in and duped into writing a resignation letter. He submitted that the plaintiff was informed that she had to pay the bank one month’s salary in lieu of notice and settle all her liabilities with the bank. Thereafter, the defendant took possession of the plaintiff’s house and sold it to recover its liabilities. He submitted that the manner in which the defendant had terminated the plaintiff’s employment was unlawful and she was therefore entitled to the reliefs sought. Counsel also urged the court to award the plaintiff a sum of Kshs. 27,000,000/= for the inconveniences she had suffered as a result of the termination.

290. The defendant’s counsel argued that the evidence on record proved that the plaintiff’s medical claim was fabricated and the plaintiff’s acts of uttering false medical claims justified her dismissal. He also submitted that since her terminal benefits had been paid, her claim was unmerited.

291. The plaintiff’s claim for severance/redundancy pay is dismissed as there was no proof that her position had been declared redundant by the defendant. The reason given for the termination of the plaintiff’s services was her utterance of false medical claims.

292. Although I was unconvinced that a majority of the plaintiff’s claims were fabricated, it was clear that the claim she made for Kshs. 21,260/= was not genuine thus the defendant had sufficient reason to dismiss the plaintiff. Nevertheless, the defendant was required to adhere to the disciplinary procedure agreed to by the parties in the CBA and Staff Manual. It was evident in this case that the manner in which the plaintiff was dismissed from employment did not follow the process that had been laid down. Admittedly, the plaintiff suffered a great deal due to her dismissal from employment by the defendant. However, the measure of damages for wrongful dismissal under the previous regime was restricted to payment for the period of notice which was a month’s salary in this case. I therefore find that the plaintiff is entitled to a month’s salary in lieu of notice.

293. Regarding her terminal benefits, DW 1 testified that the bank was unable to recover the Kshs. 118,790/= which it claimed she had misappropriated and a month’s salary in lieu of notice since she was heavily indebted to the bank. He stated that PW18’s liabilities to the bank included;

a.House loan – Kshs. 1,734,255/=

b.Card expenses- Kshs. 2,958/=

294. DW1 further testified that Caroline was earning a basic salary of Kshs. 38,271/= and her terminal benefits of Kshs. 32,439. 25 had been used to offset her Co-op card account and the balance of Kshs. 29,481. 25 was credited into her account. He stated that the plaintiff’s leave days were also duly paid to her and denied that she was entitled to any severance pay. The plaintiff did not dispute DW1’s computation of her terminal benefits. She also admitted that she was indebted to the defendant and did not lead evidence on her pension. I therefore find that the plaintiff was duly paid her terminal benefits.

295. In the end I find that Caroline Mweni Nziokais entitled to an award of Kshs. 38,271/= being damages for wrongful termination of her services.

14th PLAINTIFF-PW23

296.  Urbanus Kieti Mutinda (14th Plaintiff-Urbanus) testified that when the bomb blast occurred, he sustained deep cuts on his right leg from the knee downwards, was hit on the top part of his head by metal bar and had a cut on the backside from the neck. His ear had been affected by the loud blast. He sought treatment at St. Gabriel Health Clinic at Eastleigh where he was residing. He recalled that he had been attended to by Dr. Oyaro, Dr. Betty Gilbert and Dr. Kioni. Urbanus .He had submitted a medical claim forms on 11th February 1999, 15th February 1999 and 18th February 1999 which were all approved by the defendant.

297. Later on Urbanus received a letter from the defendant accusing him of uttering false claims to the tune of Kshs. 86,000/=. He testified that he wrote a letter to the bank requesting for a certificate of service to enable him secure another job elsewhere after his dismissal but was informed that he would not be issued with the certificate unless he wrote a resignation letter. He testified that he wrote the letter as dictated to him and the bank wrote back acknowledging receipt. He stated that there had been no requirement for him to go to a particular hospital or be treated by a particular doctor. He maintained that the receipts he had annexed to his claim forms were genuine and added that he still suffered due to the injuries he had sustained and he urged the court to grant him the prayers sought in the amended plaint.

298. In his written statement, DW 1 testified that Urbanus  was dismissed from employment on 13th May 1999 for uttering false medical claims totaling to Kshs. 117,300/=. He stated that the plaintiff voluntarily resigned from employment and he could not turn back and sue the bank for summary dismissal.

299. DW 2 analyzed the medical claim forms and came to the conclusion that the treatment indicated in the forms did not tally with the injuries the plaintiff had stated he suffered as a result of the bomb blast.

a. Whether the plaintiff fabricated or exaggerated any medical reports/documents submitted to the defendant for reimbursement with the intention of defrauding the defendant;

300. The first issue this court needs to determine is whether the plaintiff fabricated medical claims worth Kshs. 117,300/=. The court was referred to a claim form submitted by the plaintiff on 15th February 1999 for Kshs. 25,250/= (P. Exh. 2 pg. 268 & 267). The plaintiff testified that the form was filled by his attending doctor T.K. Oyoro of St. Gabriel Heal Clinic at Easleigh. During cross examination, Urbanus testified that his wounds were cleansed, stitched and dressed and his leg was massaged at the clinic. Referring to the treatment profile, DW 2 testified that the first drug listed, known as Diflucan is medicine for yeast infection and had no relation to the injuries. He stated that Pasten and liniment massage related to pain relief but since the treatment was administered 3 months later, the claim did not relate to the injuries sustained during the blast.

301. Urbanus also testified that since he had a problem with his ears as a result of the blast, he saw an ENT specialist known as Dr. Warugongo Kioni who conducted a hearing test on his ears. He stated that the pain in his ears persisted and he had to visit the doctor severally as indicated in the claim. He produced a claim form for Kshs. 33,000/= for five consultations he had with the doctor between 26th September 1998 and 5th October 1998 (P. Exh. 2 pg. 271 & 272). Urbanus testified that he paid the doctor each time he paid him a visit. For this claim, DW2 testified that the services related to a hearing problem and had no relation to the cut wounds sustained during the bomb blast.

302. Urbanus also submitted a claim form to the defendant for reimbursement of Kshs. 31,000/= on 18th February 1999 (P. Exh. 2 pg. 274 & 275). He explained that his claim related to 7 consultations he had in the months of December and January 1999, although he admitted that the doctor had not indicated when he had consulted him. He testified that he paid a total sum of Kshs. 31,000/= in installments. Urbanus testified that he was satisfied with the treatment he received at the clinic and added that since the doctor had the history of his illness he was best placed to treat him when his health deteriorated. On this claim, DW 2 stated that the treatment profile showed that what was being treated was pain and a yeast infection. In his view, the treatment given in January 1999 did not tally with the injuries which had been sustained in August 1998.

303. Urbanus also testified that he submitted a claim for reimbursement of Kshs. 28,100/= on 15th February 1999. (P. Exh. 2 pg. 277 & 278). He stated that the claim related to 4 visits he made to St. Gabriel Health Clinic for a checkup of his head injury. He testified that he received medication for pain from the clinic and was issued with one receipt after all the consultations had been computed. He admitted that the doctor did not fill the consultation dates on the claim form. For this claim, DW 2 observed that the plaintiff had been given medication for yeast infection and pain which no relation to the injuries had sustained in August 1998.

304. From the evidence of the plaintiff and DW 2, I found that there was only one legitimate claim form submitted by the plaintiff to the defendant. The plaintiff indicated that he began to experience hearing problems due to the blast and had to consult Dr. Kioni who was an ENT specialist. He submitted a claim form for his consultations to the doctor on 11th February 1999. DW 2’s contention that the plaintiff’s treatment as indicated in the claim form was unrelated to the injuries sustained during the blast was unsupported and the same is rejected.

305. The unchallenged evidence of DW 2 demonstrated to this court that the rest of the claims which were submitted on 15th February 1999 for Kshs. 25,250/=, on 18th February 1999 for Kshs. 31,000/= and on 15th February 1999 for Kshs. 28,100/= were not genuine. The plaintiff did not lead evidence to disprove DW2’s evidence that the medication listed in those forms were aimed at treating injuries suffered as a result of the bomb blast. I therefore find that the defendant was justified in rejecting those claims.

b. Whether the plaintiff is entitled to the reliefs sought;

306. Urbanus sought an order that the defendant account and pay his pension, general damages for unlawful dismissal and consequential loss of employment and damages for unlawful dismissal/redundancy including;

a.Severance/redundancy pay- Kshs.46,677. 40 x ½ x 5 years - Kshs. 116,693. 00

b.One month’s pay in lieu of notice- Kshs. 46,677. 40

c.Medical expenses deducted as fraudulent while genuinely incurred- Kshs. 78,000. 00

307. The plaintiff’s counsel argued that the Urbanus  had made out a case for unlawful termination and was therefore entitled to the reliefs sought. He contended that the plaintiff’s resignation was orchestrated by the Defendant upon realizing its fault in failing to follow the disciplinary procedure outlined in the CBA and the Staff Manual. He urged the court to award the plaintiff general damages of a sum not less than the sum of Kshs. 23,000,000/= for the bad references the defendant gave the plaintiff as a result of which he could not secure employment despite serving the defendant for 5 years.

308. The defendant’s counsel insisted that the plaintiff’s dismissal was lawful and justified. He submitted that DW 2’s evidence proved that the plaintiff’s claim forms were fabricated thus the measures taken against the plaintiff were warranted. He also argued that the plaintiff’s terminal benefits had been paid and his claim for general damages was legally unattainable.

309. In my analysis of the foregoing issue, I found that most of the claim forms submitted to the defendant by the plaintiff were not genuine hence, the defendant had a just cause to dismiss the plaintiff from employment. The defendant was however required to hold a hearing and allow the plaintiff to defend himself before taking any disciplinary measures against him. Since the procedure laid out in the CBA and the Staff Manual was not followed I find that Urbanus  is entitled to damages. Under the preceding legal regime, a claimant was only entitled to the salary he would have earned for the period notice, which was a month’s salary in this case.

310. For the reasons already given in the introduction of this decision, the plaintiff’s claims for general damages and severance/ redundancy pay are dismissed.

311. On the plaintiff’s dues, DW1 stated that his terminal benefits of Kshs. 70,139. 50 had been credited into his account and his accrued leave days had also been duly paid to him. He stated that the plaintiff’s salary was Kshs. 37,977/= and his liabilities to the bank were an education loan of Kshs. 4,375/=. Urbanus accepted that he had taken out an education loan. He stated that he earned a salary of Kshs. 37,944/= and house allowance of Kshs. 2,494/=. He did not disagree with DW1’s computation of his terminal benefits and I find that the same was duly paid.

312. Based on the reasons given, I award Urbanus Kieti Mutinda Kshs. 46,677. 40 as damages for wrongful termination of his services.

15th PLAINTIFF-PW19

313.  Mary Wambui Wahome (15th Plaintiff –Wambui) testified that she sustained injures on the face and legs due to the bomb blast. After submitting her claim forms to the bank, she was accused of misappropriating the funds and got dismissed from employment. Wambui recalled that after her dismissal, she went to the bank to inquire about her loan and was informed by one Mr. Mwai Mugweru that the interest rate had been adjusted to commercial rates because she had not written a resignation letter. She testified that she wrote a resignation letter on 21st February 2000 hoping that she would be allowed to pay her loan at staff rates. She testified that she was still undergoing treatment for the injuries she had suffered and added that she later on developed a neck problem and had to have an operation.

314. DW1 testified that Wambui had been dismissed from employment for uttering several fraudulent medical claims from Dr. C. J. Okumu and Dr. Warugongo Kioni. DW2 analyzed the medication listed under the claim forms and came to the conclusion they did not tally with the injuries.

a. Whether the plaintiff fabricated or exaggerated any medical reports/documents submitted to the defendant for reimbursement with the intention of defrauding the defendant;

315. Wambui was dismissed from employment on allegations of defrauding the defendant of Kshs.103,000/= by uttering false medical claims. The plaintiff submitted a claim form on 25th January 1999 for a sum of Kshs. 23,300/= for 10 consultations at Tiriki Lane Dispensary (D. Exh. 8 pg. 1 & 2). During cross examination, Wambui stated that she had been treated by Dr. C.J. Okumu at the dispensary along River Road. She testified that her wounds had been dressed and she was also given medication at the facility. She insisted that she had paid for each of the 10 consultations she made in August 1998. DW 2 testified that the plaintiff’s medical claim for Kshs. 23,300/= indicated that the plaintiff had been given 2 antibiotics for ten days one of which was oral while the other was administered through injection. According to DW2 it was not possible to give injections of antibiotics for 10 days and give an oral antibiotic for 10 days. It had to be either and not both. The other inconsistency noted by DW 2 was that the injections had been given consequentially yet the plaintiff was seeing the doctor on alternate days.

316. DW2 also told the court that the medication listed in Wambui’s  claim form submitted on 25th January 1999 for Kshs. 25,000/= did not conform to medical ethics (D. Exh. 8 pg. 4 & 5). In that claim form, it was indicated that the plaintiff consulted Dr. C. J. Okumu on 12 occasions between 25th August 1998 and 18th September 1998. She stated that she had paid the amount in installments but had no record to show how she had paid the installments. DW2 noted that the medication in the form was of a high profile and it would not be practical for the plaintiff to get injections daily as she claimed.

317. Wambui  also submitted another claim on 25th January 1999 for Kshs. 23,300/= for 12 consultations she had with Dr. C. J. Okumu of Tiriki Lane Dispensary between 21st September 1998 and 26th October 1998. (D. Exh. 8 pg. 7 & 8). When cross examined on the claim, the plaintiff stated that she visited the doctor for dressing of injuries on the face and for treatment of a problem she had with her leg. She also admitted that she had paid the amount in installments and did not pay the entire sum on 26th October 1998. DW 2 testified that there were two types of medication listed in the form including Claforan for 9 days and a pain relieving injection for 5 days. In his opinion a cut wound would not have required the type of treatment indicated in the form. He stated that the proper medication for a cut was a tetanus injection and not those listed in the form. He noted that the plaintiff had been received 24 injections for a cut wound on the face and in his view the profile of treatment which included injections and antibiotics which did not tally with the injury.

318. In another claim form submitted to the defendant on 25th January 1999, Wambui sought reimbursement for a sum of Kshs.16, 000/= (D. Exh. 8 pg. 10 & 11). She claimed that she had consulted Dr. C.J. Okumu at Tiriki Lane dispensary on 6 occasions between 28th November and 16th December 1998. During cross examination, the plaintiff accepted that she had paid the amount in installments but was issued with one receipt for Kshs. 16,000/=. DW 2 observed that the treatment given for the cut wound was similar to the previous treatment and in his view the treatment was superflous and could not be done at the facility.

319. DW2 held the same view of the treatment profile in the claim submitted to the defendant for Kshs. 17,700/= for 8 consultations between 29th December 1998 and 24th January 1999 at Tiriki Lane Dispensary (D. Exh. 8 pg. 13).

320. The defendant’s counsel also submitted that it was not possible for a doctor to be paid in bits and then issue a receipt for lump sum receipts for Kshs.21,000/=, Kshs.23,000/=, Kshs.16,000/= and Kshs.17,700/=. He also contended that for a dispensary that could give the alleged treatment and charge such high sums, it was expected that the facility would have printed receipts bearing its name rather than issuing “sale receipts” with their name rubber stamped. This anomaly was in the counsel’s view proof that the receipts were fake. Counsel also submitted that the plaintiff had suffered minor injuries which did not warrant 34 visits as per her claims. He also pointed out that in her evidence, Wambui consulted on alternate dates from 8th August, to 24th January, 1999 yet she had testified that it took a month or two for the cuts to heal.

321. The flaws identified in the claim forms by DW2 such as the issuance of superfluous medication that did not relate to the injuries were not disproved by the plaintiff. The defendant’s complaint against the lump sum receipts the plaintiff had been given for several consultations is valid as the plaintiff did not give an explanation for why she was not issued with a receipt each time she paid the doctor. I therefore find that the defendant had a valid reason to query the claim forms submitted by Wambui.

b. Whether the plaintiff is entitled to the reliefs sought;

322. The plaintiff’s counsel submitted that the process by which the plaintiff had been dismissed from employment was unlawful. That the defendant in a bid to cover up its wrongdoing blackmailed PW 19 into writing a resignation letter. He submitted that the plaintiff was entitled to the reliefs sought as she had made out a case for unlawful termination. The court was urged to consider the plaintiff’s 21 years of service to the defendant at the point of termination. He submitted that the plaintiff could not secure any formal employment as her resume had been tarnished by the defendant and she had been reduced to hawking from Section Head. In counsel’s view, an all-inclusive sum of not less than the sum of Kshs. 34,000,000/= would be sufficient compensation.

323. On the other hand, the defendant’s counsel submitted that there was sufficient proof that the plaintiff’s medical claim was fraudulent and therefore her dismissal was justified. He also submitted that the plaintiff’s terminal dues had been duly paid and further argued that the plaintiff was not entitled to redundancy pay or general damages which had no legal basis.

324. Wambui’s  claim against the defendant was for an order that the defendant account for and pay her pension, general damages for unlawful dismissal and consequential loss of employment and damages for unlawful dismissal/redundancy including;

a.Severance/redundancy pay- Kshs. 60,000 x 21 years - Kshs.1,260,000. 00

b.One month’s pay in lieu of notice- Kshs. 60,000. 00

c.Medical expenses deducted as

fraudulent while genuinely incurred- Kshs. 100,000. 00

325. The claim for severance pay was not proved and is dismissed for the reasons given at the introduction of this decision. The claim for general damages is similarly dismissed since it was not awardable under the previous legal regime.

326. The defendant had valid reasons for dismissing the plaintiff from employment as held in issue (a) above. The procedure adopted by the defendant was however not in line with what had been provided in the CBA and Staff Manual. Thus, in as much as the termination of the plaintiff was substantively fair, it was procedurally unfair. Wambui is therefore entitled to a month’s salary in lieu of notice as damages for unlawful dismissal.

327. Regarding her terminal benefits, DW1 testified that at the time of her resignation, Wambui had a house loan and card expenses. He testified that Wambui’s net dues of Kshs. 58,163. 20 had been credited into her current account and her leave days were also duly paid to her. He also stated that the plaintiff’s claim for a refund of Kshs. 100,000/= as medical expenses was untenable since the bank had not recovered the money as she had no funds in her account. His evidence was not challenged by the plaintiff. I therefore find that the plaintiff not only failed to prove that her medical expenses were deducted from her account but also failed to prove that her terminal benefits had not been paid.

328. In the end I find that Mary Wambui Wahomeis entitled to an award of Kshs. 60,000/= being damages for wrongful dismissal of her services.

16th PLAINTIFF-PW14

329.      Richard Kiptoo Kiprop (16th Plaintiff- Richard) testified that when the bomb blast occurred, he was in his office on the ground floor at Cooperative House. He found himself on the floor bleeding, with multiple cut injures on his face, his arms, hip and knees. He went back home in the evening after his wounds had been cleaned, stitched and dressed at Nairobi Hospital. He testified that the following day he woke up to swollen legs. He was also experiencing pain on his back and on the cuts and decided to see a local doctor at Ngong’ known as Dr. Antony Muthama who treated him and gave him drugs.

330. Richard testified also consulted Dr. Mbindyo in October and when the pain persisted he decided to see a dermatologist for the chronic pain in his scars. He visited Dr. Eliud Monda at Afya Center who reviewed the scars and found that there were pieces of glass embedded inside. He stated that he consulted the doctor in October and November and paid Kshs. 1,500/= for each session. The doctor also prescribed drugs which came to a total of Kshs. 20,100/=. He testified that he filled the claim form on 3rd December 1998 and it was forwarded and approved the same day.

331. Afterwards, Richard received a letter dated 10th May 1999 from the Human Resource Department alleging that he had misappropriated the bank’s funds. He wrote back refuting the allegation. He received another letter dated 11th May 1999 suspending him from work and got another letter dated 13th May 1999 dismissing him from employment. In another letter dated 6th August 1999, they informed him that they had secured evidence of his alleged misappropriation of funds and would be recovering the funds.

332. Richard went on to testify that 5 months after he had left employment a Human Resource officer called him and told him that the bank would reinstate him if he wrote a resignation letter admitting that he had misappropriated funds. He thought it was a good solution and on 6th October 1999 he wrote the letter requesting for resignation. The letter was received on 7th October 1999. The bank wrote a letter dated 21st October 1999 accepting his resignation and back dated his resignation letter to 13th May 1999. He testified that he had loans which the bank demanded he pays.

333. Richard testified that Dr. Eliud Monda agreed to write a letter a few years later confirming that he had treated him. The plaintiff also told the court that he had not fully healed and he had to see a doctor when his body reacted due to the injuries he had sustained.

334. In cross examination Richard stated that by the time he left the bank he worked in management as a supervisor and knew the disciplinary procedures. He confirmed that before visiting Dr. Monda, he had made other claims and by then he had utilized his sum and his claim was only for the visits to Dr. Monda. He insisted that he wrote his resignation letter under duress and accused the bank of wrongfully debiting his account for Kshs. 200,000/= on 17th September 1999. He also testified that he did not have the benefit of the bank statements but admitted that when his services were terminated, he had a car loan of Kshs. 28,736/35.

335. DW1 testified that after investigations it was realized that Richard’s claim for Kshs. 200,000/= was fraudulent. Concerning Richard’s visits to the doctor in October and November 1998 DW 2 testified that the manner in which the plaintiff’s treatment was conducted was questionable. He testified that Richard had been given an antibiotic floscapen to treat an infection and contatobex for a healed scar. He stated that the two drugs could not be taken together since the infection had to be treated first and followed by the scar. DW2 also testified that the sum claimed included prescription drugs which were normally not stored in a doctor’s office. He accepted that it was possible that the treatment was be related to the bomb blast but questioned the length of time it had taken for the wounds to heal.

a. Whether the plaintiff fabricated or exaggerated any medical reports/documents submitted to the defendant for reimbursement with the intention of defrauding the defendant;

336. Richard is accused of making a fraudulent claim for Kshs. 200,000/=. The only claim form adduced in court is the one dated 3rd December 1998 for Kshs. 20,100/= for visits made to Dr. Monda in October and November. He  annexed a letter from the doctor dated 2nd June 2005 in which the doctor confirmed that he had treated the plaintiff on 15th, 20th and 23rd October 1998 and on 4th, 10th, 13th , 19th , 24th and 28th November 1998. These dates were reiterated in the claim form.

337. To support their assertion that Richard had fabricated his claim, the defendant relied on the evidence of DW2 that the treatment for infection of the wounds would not take long to heal and that the plaintiff’s wounds should not have been there in November, 1998 when PW14 claimed he had 6 consultations with the doctor. The defendant was of the view that since the bomb blast occurred in August 1998, Richard should not have waited until October 1998 to start seeking medical attention, and in their view this meant that the plaintiff did not sustain the alleged injuries.

338. Upon analyzing the evidence of Richard, I find that he sufficiently explained his need to seek medication in October and November of 1998 and the reason his scars had to be treated at that time. In his evidence, Richard testified that his scars persisted with chronic pain and when he went to the doctor it was discovered that pieces of glass were embedded in his wound. DW 2 also stated that the medication dispensed by Dr. Monda were prescription drugs and were not to be kept in his clinic. However, there was no evidence that the plaintiff was aware of this alleged violation by the doctor. My conclusion from the evidence is that the defendant did not prove that the plaintiff fabricated his claim.

b. Whether the plaintiff is entitled to the reliefs sought;

339. In the amended plaint, Richard sought an order that the defendant pay and account for his pension. He also sought general damages for unlawful termination and damages for unlawful dismissal including;

a.  Severance /redundancy pay - Kshs. 68,747 x 15 years - Kshs. 1,031,205/=

b. One month’s pay in lieu of notice- Kshs. 68,747. 00

c.  Medical expenses deducted as fraudulent while genuinely incurred- Kshs. 200,000. 00

340. As stated in the introduction herein the plaintiff did not prove that the defendant declared him redundant as defined in Section 2 of the repealed Trade Disputes Act. The manner in which he was dismissed from employment was however not complaint with the Staff Manual which required that the employee be interviewed before his termination. I have also found that the defendant did not prove that the plaintiff made a fraudulent claim for Kshs. 200,000/= hence his termination was both procedurally and substantively improper.

341. In his submissions, the plaintiff’s counsel urged the court to award Richard an award of general damages of not less than Kshs. 14,500,000/= as damages. I concur with the defendant’s submissions that prior to the enactment of Employment Act, 2007, damages payable for wrongful and unlawful termination of employment was the equivalent of the notice period which in this case was 1 month and at the time of his dismissal. I therefore find that the plaintiff is entitled to a month’s salary in lieu of notice which is Kshs. 67,094/=. Regarding his terminal benefits, DW1 testified that the bank could not recover the medical expenses of Kshs. 200,000/= because PW 14’s account already had a debit balance of Kshs. 278,270/=. This is confirmed in the plaintiff’s computation of terminal benefits at page 307 of the plaintiffs’ exhibit 2. DW1 also testified that as at the time he resigned, Richard had the following liabilities;

a.  House loan- Kshs. 548,901. 00

b. Medical expenses- Kshs. 200,000. 00

c.  Card expenses- Kshs. 31,428. 05

d. Share purchase- Kshs. 12,996. 00

e. Vehicle loan- Kshs. 154,647. 00

342. He stated that Richard was earning a basic salary of Kshs. 67,094. 00 and added that out of his net dues of Kshs. Kshs.35,021. 00, Kshs. 6,285. 60 of his net dues of were credited into his Coop card account and the remainder of Kshs. 28,736. 35 credited into his car loan account. He testified that Richard’s leave days were duly paid and he was allowed to continue servicing his loans at staff rate after his request to resign. The plaintiff did not dispute DW 1’s computation, he also failed to give evidence on his pension and I find that his terminal benefits were duly paid.

343. The upshot of the foregoing is that Richard Kiptoo Kiprop is awarded a sum of Kshs. 67,094/= being damages for wrongful termination of his services.

17TH PLAINTIFF-PW10

344.      John Bundi Magiri (17th Plaintiff-Bundi ) testified that at the time of the blast he was at the defendant’s basement.  He sustained injuries on the face, the left leg and chest. He testified that he was taken to Nairobi hospital by Good Samaritan but could not afford the fees. He was treated at Dr. Mathia’s clinic near Bazaar plaza along Moi Avenue.  The following day he went to Prime Care Hospital.  He was terminated by the defendant on allegations that his claims were not proper. He testified that he had taken a house loan of about Kshs 1,800,000/- and was paying Kshs.10,521/= per month. He testified that after his employment was terminated he could not pay the loan installments and the defendant sold his house for kshs.700,000/=.

345. Dw2 testified that the injuries sustained by Bundi   were to the face, ears, waist and chest.  It was his testimony that most of his medical claims were for treatment that do not relate to Bundi’s injuries.

346. The plaintiff submitted that Bundi did seek a reimbursement of all medical expenses incurred and some of his medical claim forms appear on pgs 309-338 of the plaintiff’s exhibit 2. It was advanced that each claim would be processed, approved by the relevant department and if found to be in order would be approved and the money credited in the staff account. The plaintiff submitted that all of Bundi’s claim forms were procedurally processed and duly paid.

347. The defendant submitted that the initially treatment allegedly given to Bundi  was the dressing of the wounds and painkillers as stated at paragraph 3 of his witness statement but surprisingly, he subsequently submitted medical claims for a total sum of Kshs.180,170/-. It was submitted that as per Dw1’s witness statement at page 26 paragraph 3 thereof and which was adopted as his evidence in chief  said that the Bundi’s  said medical claims (page 301-341) of P. Exh.2) after investigations were found to be fraudulent.

a.    Whether the plaintiff fabricated or exaggerated any medical reports/documents submitted to the defendant for reimbursement with the intention of defrauding the defendant;

348. In the first claim dated 9th December 1998 the Bundi sought reimbursement of Kshs 23,400/-. Dw2 testified that it was not possible to know the nature of treatment that was given to Bundi  as the claim does not mention the medication administered to him despite the medication costing Kshs 14,000/-.

349. In his claim form dated 4th January 1999, Pw10 claimed for reimbursement of medical expenses totaling to Kshs 23,650/-. Dw2 testified that the medication prescribed therein did not have the dosage for the medication or the duration for which they were to be taken by Bundi.

350. He also made a claim for Kshs 17,100/- in his claim dated 17th December 1998. Dw2 testified that treatment given to Bundi  as per the medication was for bacteria and not the injuries sustained by him as a result of the bomb blast.

351. Bundi  spent Kshs 23,300/- after seeing Dr. Mucheru on 11th December 1998. Dw2 testified that the medication administered as per Bundi’s medical claim relate to a bacterial infection and not his  injuries from the bomb blast.

352. In his claim dated 7th November 1998 Bundi claimed to have had consultations with Dr. Mucheru on 4th and 7th November 1998. He paid Kshs 14,900/-. Dw2 testified that Bundi’s  injuries were to the face, ears, waist and chest.  The visit on 4 & 7/11/1998 by Bundi  was 3 months after his initial injuries.  Dw2 told court that the treatment relates to an infection.  He explained that the 1st drug administered was an antibiotic; the 2nd drug a multivitamin and the 3rd drug, Halifaxan, anti-malarial drug. It is this account that Dw2 formed the opinion that the medication does not relate to the injuries. Dw2 testified that the cost of the said medication indicated in Bundi’s receipt at page 323 of Pexh. 2 was excessive.

353. The defendant also paid for Bundi’s medical costs incurred on 31st December 1998. According to his medical claim and receipt dated 31st December 1998 he spent Kshs 15,970/-. Dw2 testified that it was not possible that the cut wounds would need dressing as at 31st December 1998, Bundi having sustained his injuries in August.  He also testified that it would be un-procedural for Dr. Mucheru M.D to offer the medication.

354. Bundi  claimed reimbursement of Kshs 22,450/- following his consultation with Dr. Mucheru on 16th January 1999. Dw2 testified that the treatment plan included administration of an antibiotic and an antimalarial.

355. For his consultation with Dr. Mucheru on 26th January 1999 he spent a total of Kshs 7,800 towards his medical expenses. Dw2 testified that the dosage and duration for the prescribed drugs were not mentioned. He also pointed out that the medication was for treatment of bacterial infection and malaria.

356. Bundi also had 6 consultations with Dr. Mutuma, had lab tests done at Eastern Medical Laboratory Diagnostic Services and thereafter bought medication at cross road chemist. He spent a total of Kshs 18,350/- on his medical expenses. Dw2 testified that according to the documents presented Bundi was given pain medication and medication for treatment of typhoid and malaria contrary to the treatment necessary for treatment of Bundi’s initial injuries sustained at the bomb  blast.

357. On 29th December 1998, Bundi  visited the facility of Dr. Mutuma and spent Kshs 27,000/- on drugs, laboratory and consultation. Dw2 testified that Dr. Mutuma was a pathologist and it was un-procedural for him to have prescribed the plaintiff’s medication. He told court that the medication prescribed were antibiotics and painkillers and the duration at which the medication was to be taken was not known.

358. In the end I find that the treatment administered to Bundi was in regard to bacterial infections, malaria and typhoid which are ailments that no relation to the injuries sustained by him  and any reasonable employer in the circumstance would have taken disciplinary action against the plaintiff.

b.Whether the plaintiff is entitled to the reliefs sought

359. Among the reliefs sought by Bundi  were an order for payment and account of his pension, general damages for unlawful termination and loss of employment as well as damages for unlawful dismissal including;

a. Severance /redundancy pay Kshs. 41,000 x 21 years - Kshs.861,000/-

b.    One month’s pay in lieu of notice- Kshs. 41,000/-

c. Medical expenses deducted as fraudulent while genuinely incurred- Kshs. 180,000/-

360. The plaintiff failed to prove redundancy and his claim for severance pay is hereby dismissed.

361. Dw2 testified that Bundi’s net dues were Kshs 11,397 which was credited to his account. It was Dw1’s testimony that the medical expenses of Kshs 180,170/- was not recovered by the defendant as Pw10’s account lacked sufficient funds to recover the said amount.

362. On the award of general damages it was submitted that the fact that bundi  could not thereafter obtain gainful employment as his name had already been tarnished and listed in the Credit Reference Bureau (CRB), the court should consider an award not lower than the sum of Kshs. 27,000,000/=. Having found that Bundi’s dismissal was wrongful he is only entitled to damages equivalent to the salary he would have earned for the period of notice (seeCentral Bank of Kenya v Nkabu case supra). His claim for general damages therefore fails.

363. Having found that the procedure used by the defendant to dismiss the plaintiffs was not fair, John Bundi Magiri is entitled to Kshs 41,000/- as damages for wrongful termination of his services.

18th PLAINTIFF- PW21

364.  Rita Naliaka Situma (18th Plaintiff-Rita) testified that she sustained injuries on her left knee and also inhaled smoke as a result of the bomb blast. She testified that she saw a bone and trauma specialist known as Dr. Mulimba and also saw Dr. Tanga who a dealt with bones and chest problems. Rita recalled that she submitted her claim forms together with supporting receipts and her claims were approved.

365. Afterwards, she received a letter dismissing her from employment for uttering a false medical claim of Kshs. 108,570/=. She testified that the bank wrote her a letter demanding that she repay her outstanding loan. She recalled that she had been advised by the Human Resource Department to write a resignation letter in order to continue paying interest at 2. 5% p.a. as opposed to the commercial rate which was over 20% which she did. She complained that due to the bomb blast, she still experienced pain in her knees and often lost her voice. She urged the court to grant her the prayers sought in the plaint.

366. In his written statement, DW1 stated that their investigations had revealed that Rita had made a fraudulent claim totaling Kshs. 108,570/=. He stated that after her dismissal, Rita requested to be allowed to resign and her request was accepted by the bank. DW 2 analyzed the plaintiff’s medical claim forms and came to the conclusion that medication listed in her claim forms could not be used to treat the injuries the plaintiff claimed she sustained in the bomb blast.

a. Whether the plaintiff fabricated or exaggerated any medical reports/documents submitted to the defendant for reimbursement with the intention of defrauding the defendant;

367. Rita testified that on the day the bomb blast occurred, she received treatment at Dr. Mulimba’s clinic at Tom Mboya Street. She stated that an X-ray had revealed that she had a bone broken. She recalled that Dr. Mulimba had given her a letter recommending an operation at Kenyatta but it was not conducted. She decided to consult Dr. Tanga Audi who was in the bank’s panel. She stated that at the time she saw Dr. Tanga, she was still experiencing pain.

368. She told the court that she had submitted a claim form on 17th February 1999 for a sum of Kshs. 35,000/= relating to her visit to Dr. Tanga on 13th, 14th and 16th February 1999. (D. Exh. 6 pg. 16 & 17). She stated that the doctor had signed the claim form and issued her with receipt no. 3083 for Kshs. 35,000/=.  She also added that she had paid the sum of Kshs. 35,000/= in installments and was given one receipt for the lump sum amount. She insisted that by the time she was issued with the receipt, she had paid the whole amount.

369. DW2 noted that the profile of the treatment indicated in the plaintiff’s claim submitted on 17th February 1999 was not for injuries sustained in the bomb blast. He stated that the drugs in claim form including Sporanox and Dipfara were used to treat yeast infection and had no relation to the injuries. He also pointed out that the medicine purportedly given to the plaintiff could only be dispensed in a pharmacy. DW2 also observed that the receipt issued by the doctor claimed that the plaintiff had been given injections yet the medication listed in the claim form could not be administered through injections.

370. The plaintiff also testified that she incurred Kshs. 61,200/= on 28th December 1998 and submitted her claim for the amount on 22nd February 1999 (D. Exh. 6 pg. 20 & 21). She attached a receipt that had been issued by Dr. Tanga Audi for the sum of Kshs. 61,200/= on 28th December 1998. Rita explained that the claim was for 6 visits she made to Dr. Tanga in 1998 due to the continuous pain she was experiencing. She testified that she had paid the sum of Kshs. 61,200/= in installments although she could not recall the sums she paid in installments. DW 2 noted that the treatment had been given 3 months after the plaintiff sustained the injuries. He also testified that the medication did not tally with the professional fee of Kshs. 61,200/=. DW2 also told the court that among the medication given none were injections as claimed by the doctor.

371. On 11th January 1999 Rita incurred a further Kshs. 6,600/= and submitted a claim form for the amount on the same day. ( D. Exh. 6 pg. 24 & 25). She attached two receipts the first one for Kshs.6,000/= from Malibu Pharmacy and the second one for Kshs. 600/= from Dr. Mulimba to support her claim. During cross examination, Rita testified that the form had been signed by Dr. Nganga at his clinic within Afya House.  She explained that she had gone to see the doctor for her leg problem and was issued with two receipts for Kshs. 6,000/= and 600/= which included the doctor’s consultation. DW2 testified that the medication including Losec, Maalox and Libraxix were medication for ulcers and had nothing to do with the injuries and besides the medication had purportedly been given more than 3 months after the injury.

372. The plaintiff did not call evidence to challenge the evidence of DW2   His evidence was also not shaken on cross examination. I am therefore inclined to believe his evidence that the medication given to the plaintiff had nothing to do with the treatment of injuries she sustained in the bomb blast which leads me to the conclusion that the claim forms she submitted on 17th February 1999 on 22nd February 1999 and 11th January 1999 were not genuine.

b. Whether the plaintiff is entitled to the reliefs sought.

373. The plaintiff’s counsel submitted that after her unlawful dismissal, Rita was baited into writing a resignation letter by the defendant in a bid to cover up her unlawful dismissal. He submitted that the plaintiff was entitled to damages for the wrongful dismissal as well as general damages of not less than Kshs. 25,000,000/= for her 20 years’ service to the defendant and her inability to get formal employment due to the tainting of her name by the defendant.

374. The defendant’s counsel countered that the unchallenged evidence of DW 2 had conclusively proved that the claim submitted by Rita was fabricated. He submitted that the plaintiff’s conduct of uttering a false medical claim was a breach of his contract and the defendant was justified in summarily dismissing her from employment. He also submitted that the reliefs sought by the plaintiff were not warranted since she had been paid her terminal dues and her claim for general damages was not supported by the law.

375. The reliefs sought by the plaintiff in the amended plaint included an order that the defendant account and pay her pension, general damages for unlawful dismissal and consequential loss of employment and damages for unlawful dismissal/redundancy including;

a.Severance/redundancy pay- Kshs.56,883 x 20 years - Kshs.1,137,660. 00

b.One month’s pay in lieu of notice- Kshs. 56,883. 00

c.Medical expenses deducted asfraudulent while genuinely incurred- Kshs. 12,370. 00

376. In my analysis of the first issue, I found that the claims submitted to the defendant by the plaintiff were not authentic which warranted her dismissal from employment by the defendant. The Staff Manual provided a procedure for disciplining employees which involved an oral hearing. The defendant flouted the disciplinary procedure by failing to accord the plaintiff a fair hearing thus in as much as there was substantive fairness in dismissing the plaintiff from employment, there was no procedural fairness.

377. The defendant’s counsel correctly submitted that the damages payable as per the law prevailing at the material time was the equivalent of the notice period, which in this case was one month’s salary. The plaintiff is therefore entitled to a month’s salary pay less statutory deductions. General damages were not in the class of awards that could be granted for unlawful dismissal. The plaintiff’s claim for general damages is therefore dismissed. Her claim for severance/ redundancy pay is equally dismissed as the same was not proved.

378. Regarding the plaintiff’s terminal benefits, DW1 testified that Rita’s net dues of Kshs. 69,577. 95 had been duly credited into her current account and her accrued leave days had also been paid.  He listed the plaintiff’s liabilities to the bank at the point of termination as follows;

a.House loan - Kshs. 1,440,059. 10

b.Medical expenses - Kshs. 12,370

c.Card expenses- Kshs. 24,091. 65

379. The plaintiff did not contest the defendant’s computation and I find that she was duly paid her dues. Her payslip at page 347 of the P.ext.2 shows that her gross pay was Kshs. 56,833/- .

380. For the reasons given above, I award Rita Naliaka Situma Kshs.56,833/- as damages for wrongful termination of her services.

20TH PLAINTIFF –PW5

381.      Lucy Wanjiru Mbugua (20th Plaintiff-Lucy) testified that she was employed by the Bank as a messenger and rose to the rank of section head. She recalled that on the day of the bomb blast and she sustained multiple cuts wounds on the head, hands, legs and back.  She developed Keloids which had to be removed and had also developed a gas, throat and gynecological problems. On the day of the blast she was taken to Agakhan Hospital and admitted for six (6) hours and thereafter she went to Agakhan Hospital for daily dressing. On the first day of bomb blast co-operative bank paid for her treatment at Agakhan Hospital.  That every time she went to the hospital she was given the credit note before the treatment. She received services from the hospital for free after presenting an authorized card.

382. She was also treated by Dr. Nganga.  She consulted Dr. Kioni for injuries relating to her ears and throat. Later, the defendant alleged that she misappropriated kshs.127,422/= and suspend her from duty before eventually terminating her services .

383. Dw2 testified that Lucy was treated with diflucan yet none of the injuries required the medication as they relate to gynecology issues.  He testified that the claim in Pexh 2 at page 369 is for bilateral antral washout which is procedure that relates to an ear, nose and throat problem and does not relate to cut wounds in the claim. He also testified that antral washout is a procedure done in theater and not within the doctor’s office.  Dw2 also testified that Dr. Ng’ang’a was a pharmacist and pharmacists in their line of duty are not supposed to treat patients.  He told court that at pages 384 to 385 of Pexh 2, the treatment relates to acidity or ulcers but has nothing to do with cut wounds.

384. The plaintiff submitted that Lucy sought reimbursement of all medical expenses incurred and all her claim forms were procedurally processed and duly paid. They directed the court to some of her medical claim forms appear on pgs 366-386 of the plaintiff’s exhibit 2.

385. The defendant submitted that Lucy admitted that there medical treatment at Aga Khan Hospital was free but reverted to Dr. Nganga of Malibu Pharmacy because claims forms at Aga Khan were scarce. It was submitted that Lucy’s allegations that the forms were not available is unfounded as the employees were allowed to collect the medical forms and avail them to the doctors.

a. Whether the plaintiff fabricated or exaggerated any medical reports/documents submitted to the defendant for reimbursement with the intention of defrauding the defendant;

386. Lucy testified that she suffered cuts wounds on the head, hands, legs and back and also had an ear, nose and throat problem. She also claimed that as a result of the blast she started experiencing gynecological problems.

387. I will begin with the medical claims that relate to Lucy’s consultation with Dr. Warugongo Kioni an ear, nose and throat specialist. Her  claim at page 369 of Pexh 2 reveal that she had a consultation with Dr. Kioni on 24th December 1998 and the amount she was charged was Kshs 9,600/-. Despite the amount being clear as per the doctor’s receipt, Lucy in her claim falsely claimed for Kshs 12,600/-. I say so because she made a declaration that the details in the claim were true and complete by signing the claim form. On 11th January 1999 she also had a consultation with Dr. Kioni and the records (Pexh 2 page 366-368) shows that she spent Kshs 12,600/-. Dw2 testified that a bilateral antral washout is a surgical procedure that is done only in theatre and could not have been performed at Dr. Kioni’s office. It was not contested that Dr. Kioni was an ENT specialists. There was no proof that his office did not have a theatre where the procedure could be carried out and I therefore disregard Dw2’s testimony on the issue.

388. Lucy in her testimony during examination in chief testified that she had cut wounds and pain on her back and did not sustain any other injuries. Lucy’s  first visit to Dr. Kioni was on 24th December 1998 four months after the incident. The plaintiff failed to establish that her ear nose and throat ailments were as a result of the blast. The letter from Dr. Kioni shows that she had visited the doctor before the blast and had pre-existing conditions before the blast as he indicated that Lucy’s initial medical fees with regard to her ear, nose and throat problems were paid by the defendant before the bomb blast.

389. In any case, while the letter corroborates the evidence of Lucy, she ought to have called Dr. Kieni as a witness so that the defendant could have the opportunity of cross examining him. Failure to call him as a witness was fatal and in the end I find that Lucy  failed to establish that her ENT problems were as a result of the bomb blast and were not pre-existing conditions that she had prior to the bomb blast.

390. At page 372 of Pexh 2, Lucy claimed to be reimbursed Kshs 13,752 on account of 1 consultation from Dr. Ng’ang’a and medication costs. Her receipt from Malibu Pharmacy Ltd is for Kshs 13,252/- but there is no evidence of a consultation from Dr. Ng’ang’a. Her claim dated 29th November 1998 indicate that she had a consultation on same day and was claiming Kshs 25,400 and her receipts reflect a similar amount as her claims. Her claim dated 6th December 1998 was for reimbursement of Kshs 19,060/- and receipts from Dr. Patrick K. Ng’ang’a and Malibu Pharmacy Ltd are for Kshs 19,060/-. Her next claim (Pexh 2, at Pages 381) was dated 2nd December 1998 seeking Kshs 13,200 where she had had a consulted Dr. Ng’ang’a on 20th November 1998.

391. It was established at the hearing that Dr. Nganga is a pharmacist and pharmacists are not qualified to have consultations with patients with a view of treating their ailments.  Dw2 pointed out that Lucy’s treatment was geared towards treating her keloids which arose from her injuries from the blast but noted that a pharmacist is not qualified to treat patients.

392. The final claim was for reimbursement of Kshs 16,000/-, yet again the Lucy  purported to have received treatment from Dr. Ng’ang’a. Dw2 in his testimony explained that pharmacists cannot examine and prescribe or treat patients; they are only allowed to dispense medicine. Lucy in her examination in chief testified that Dr. Ng’ang’a was the owner of Malibu Pharmacy and therefore not qualified to treat her.

393. I also find that the Lucy failed to establish how her gynecological problems and ulcers were caused by the bomb blast having acknowledged that her injuries after the incident were multiple cuts wounds on the head, hands, legs and back.

394. On the basis of my analysis of Lucy’s medical claims, I find that in the circumstances the defendant’s decision to dismiss her fell within the band of reasonable responses which a reasonable employer might have adopted.

b. Whether the plaintiff is entitled to the reliefs sought

395. Lucy claims severance pay of Kshs 509,316, one month’s salary in lieu of notice and medical  expenses deducted by the defendant totaling to Kshs 127,000/-.

396. It was Dw2’s evidence that the false medical expenses of Kshs 127,477 were never recovered. Dw2 testified that Lucy’s other liabilities included a house loan of Kshs 1,785,000 and card expenses of Kshs 6,486. 75/-. Lucy’s claim to medical expenses of Kshs 127,477/- therefore fails.

397. Although the plaintiff claimed for severance pay of Kshs 509,316/-, it has been established that Lucy was terminated for misappropriation of funds and not on account of redundancy. It is my finding that the procedure applied in terminating Lucy from employment was unfair and she is thus entitled to one month’s salary. Lucy’s claimed for Kshs. 24,000,000/= as an award for general damages fails.

398. I award LucyWanjiru Mbugua Kshs 42,443/- , being damages for wrongful termination of her services.

21ST PLAINTIFF-PW27

399.    Patrick Muinde Mackenzie (21st Plaintiff-Muinde) testified that as a result of the bomb blast he was cut on the right hand and left hand, cuts on the head and his legs. He testified that there were pieces of glass in the right leg.  He also had injuries due to the dust and smoke that was in the buildings. He consulted Dr. Rakwar at Sheikh Karume Road. He also consulted Dr. Samuel Okamu and Dr. Ojuok.

400. Dw2 testified that the treatment administered on Munide did not correspond to his injuries sustained in August 1998.

401. The plaintiff submitted that he had made out a case of unlawful termination and thus entitled to the relief sought. It was submitted that the court should be guided by Muinde’s length of service. He urged the court to consider the damage occasioned on Muinde’s life while making an award of general damages and proposed the sum of Kshs 39,000,000/-.

402. The defendant submitted that Muinde in his evidence in chief and in cross examination said that after the bomb blast he was bleeding profusely and his friend, one Anne Mwaliti, took him to a chemist on Luthuli road, which according to him was between Tom Mboya Street and River Road (see 1st paragraph page 326 of the typed proceedings) where he was allegedly given first aid. On further cross examination, he said that he did not know the name of the chemist but it was adjacent to Abby Hotel, Off Luthuli Avenue. The defendant submitted that Muinde’s evidence, it is not credible and/or probable that someone who is bleeding profusely as alleged would go all the way to a chemist on Luthuli Avenue, instead of being rushed to a hospital such as Kenyatta or Nairobi which were more direct than Luthuli Avenue. It was further submitted that Dw2 gave clear evidence which was not challenged in cross examination and it is thus apparent that Muinde fabricated and/or faked the alleged injuries.

a. Whether the plaintiff fabricated or exaggerated any medical reports/documents submitted to the defendant for reimbursement with the intention of defrauding the defendant;

403. The first medical claim, Pexh 2 page 404, relate to treatment of Muinde costing Kshs 22,500/- after consulting Dr. Rakwar. Dw2 testified that Muinde was injected with ciproxin (an antibiotic).  He explained that the treatment would have been administered where a patient had severe infection and it would have required hospitalization. I also find that the medical claim presented to the defendant did not have an accompanying receipt of proof of payment.

404. Muinde also had 9 consultations with Dr. Ojuok in the month of August 1998 and he spent Kshs 24,600 on medical expenses. Dw2 testified that as per the claim form, the medicine prescribed for Muidne , Travegh, is medicine for yeast and has no relation to the injuries sustained by the plaintiff.  He also pointed out that the Celestoden cream prescribed is medicine for allergy.

405. Muinde spent Kshs 25,125/- in the month of September and October of 1999 on consultation and treatment costs. I have also noted that the receipt is dated 26th August 1998 and I find that it was not possible for Dr. Ojuok to have preempted the amount even before he had a consultation with the Muinde . Dw2 also testified that one of the medicines prescribed, Logamete, is for peptic ulcers and not related to the injuries mentioned by Muinde as sustained in August 1998.

406. The last claim relate to 6 consolations and treatment received from Dr. Ojuok at the cost of Kshs 32,950/-. Dw2 testified that again, Muinde was given medication for yeast and fungal infection which clearly do not relate to his injuries.

407. In the end, I find that the plaintiff failed to prove that the medical claims were in regard to treatment of injuries sustained as a result of the blast, i.e. a cut on the right and left hand, cuts on his head, arm and his legs. Having scrutinized the medical claim any reasonable employer would have sufficient reasons to commence a disciplinary process against Muinde.

b.Whether the plaintiff is entitled to the reliefs sought

408. Muinde  claims  severance pay in the sum of Kshs 831,360/-, one month’s salary in lieu of notice at Kshs 69,280 and medical expenses deducted by the defendant in the sum of Kshs 186,175/-.

409. On the claim of deducted medical expenses it was Dw1’s testimony that Kshs 186,175/- was never recovered by the defendant since Muinde did not have money in his account. Dw1 testified that Muinde’s net dues was Kshs 1,116. 35/-. His accrued leave days were 16. 64 and Dw1 told court that they were duly paid to Muinde as per the computation of terminal benefits. In the end, I find that Muinde was paid all his terminal dues and the medical expenses not deducted by the defendant and thus Muinde is not entitled to Kshs 186,175. He is equally not entitled to severance pay having failed to prove that his position was declared redundant by the defendant.

410. Muinde  having been unfairly terminated he is thus only entitled to one month’s salary in lieu of notice. As per the computation of Pw27’s terminal dues at page 406 of Pexh 2, his one month’s salary in lieu of notice is Kshs 57,607/-. The claim for general damages in the sum of Kshs 39,000,000/- also fails as the plaintiff is only entitled to damages equivalent to the salary he would have earned for the period of notice.

411. I award Patrick Muinde Mackenzie Kshs. 57,607/- being damages for wrongful termination of his services.

22nd PLAINTIFF-PW20

412.  Maria Mrunde (22nd Plaintiff-Maria) testified that she sustained cuts on her head, face and her back when the bomb blast occurred. She claimed that she was taken to Kenya National Hospital but since it was crowded she was rushed to Aga Khan where she received first aid. She recalled that she started to bleed during the night and was taken to a clinic known as Sugema where she was treated by Dr. Magdalene. She recalled that she had also received treatment from Dr. Tanga Audi for her back and the doctor had signed her claim for Kshs.7,250/=.

413. Maria stated that she later received a show cause letter accusing her of making a false medical claim but she did not respond to it and was dismissed from employment. She stated that when she went to the bank to get a certificate of service she was advised to write a letter admitting that she had made a false claim which she did. She testified that the injuries on her head and face had healed but she still had a back problem for which still sought treatment.

414. In cross examination, Maria told the court that the cuts on her head and forehead took 3 months to heal and she got the injections indicated in the claim submitted on 2nd February 1999 for her back problems. She testified that the doctor received the entire sum of Kshs. 7,250/= and issued her with a receipt.

415. DW1 testified that their investigations had concluded that the receipts the plaintiff claimed had been issued by Dr. Tanga Audi were fraudulent. He stated that Maria was issued with a show cause letter for misappropriating the bank’s Kshs. 7,220/= and was dismissed from employment for uttering the false medical claim. He stated that Maria requested to be allowed to resign having admitted and apologized for her actions. DW1 informed the court that the plaintiff’s net dues of Kshs. 18,777. 95 were duly credited into her account as well as her accrued leave days.

a. Whether the plaintiff fabricated or exaggerated any medical reports/documents submitted to the defendant for reimbursement with the intention of defrauding the defendant;

416. Maria was dismissed from employment by the defendant for submitting a false claim for Kshs. 7,220/=. She submitted her claim form for the amount to the defendant on February 1999. She explained that the amount included charges for consultation, injections and other expenses she incurred when she visited Dr. Tanga Audi on 24th and 28th December 1998 (P. Exh. 2 pg 408 & 409). The plaintiff also annexed a letter dated 11th March 1999 from Sugema Medical Clinic (Umoja) which indicated that she still had general back problems and had been psychologically affected by the blast. She also annexed a clinical sheet from the Aga Khan Hospital to prove that she had received treatment for injuries she sustained from the blast. DW 2 told the court that it was unlikely that the cuts sustained during the blast remained untreated up to December 1998 when the plaintiff’s claim dated 2nd February 1999 was made. In his opinion, the claim made by Maria did not relate to the injuries sustained in August 1998.

417. Maria was unable to explain why she sought treatment from Dr. Tanga Audi in December, yet she had told the court that her injuries took 3 months to heal. This leads me to the conclusion that the claim form she submitted to the defendant on 2nd February 1999 was a not genuine.

b. Whether the plaintiff is entitled to the reliefs sought;

418. The reliefs sought by the plaintiff in the amended plaint included an order that the defendant account for and pay her pension, general damages for unlawful dismissal and consequential loss of employment and damages for unlawful dismissal/redundancy including;

a.Severance/redundancy pay- Kshs.30,100 x 7 years - Kshs.210,700. 00

b.One month’s pay in lieu of notice- Kshs. 28,000. 00

c.Medical expenses deducted as fraudulent while genuinely incurred- Kshs. 7,000. 00

419. In his written submissions, the plaintiff’s counsel submitted that the manner in which the plaintiff had been dismissed from employment was not compliant with the laid down disciplinary procedures. He stated that the defendant did not send the plaintiff for a second medical opinion and no report was ever tabled to support the defendant’s decision. He therefore urged the court to find that her dismissal was unlawful and award the reliefs sought. The court was urged to consider the plaintiff’s length of service and her inability to secure any formal employment due to the tainting of her name by the defendant. Counsel proposed an all-inclusive award of Kshs. 15,000,000/= for the plaintiff.

420. The defendant’s counsel countered that although the plaintiff had claimed that she was coerced to write the letter admitting she had made a false claim, she tendered no evidence to prove such coercion. Counsel also submitted that the plaintiff’s terminal benefits had been paid and stated that the plaintiff’s claim for general damages was not supported by law.

421. Maria’s claim for severance/redundancy pay is unmerited since she did not prove that her services were declared redundant by the defendant.

422. Having analyzed the evidence tendered by both parties, I find that the defendant had a valid reason to terminate the plaintiff’s services. The Staff Manual provided that where there were deviations from policy, rules and procedures by its staff, the defendant would institute measures in accordance with the disciplinary policy and the rules of natural justice. The Staff Manual also required that the employee would be interviewed and given a chance to air their own knowledge of the indiscipline. Although the plaintiff did not show that she had been coerced into writing her resignation letter, the approach taken by the defendant to discipline the plaintiff did not meet the standards set out in the CBA and the Staff Manual. I therefore find that the plaintiff is entitled to damages for wrongful dismissal. The plaintiff claim for general damages for wrongful dismissal was not awardable under the previous legal regime. The measure of damages under the previous legal regime was restricted to the period of notice which was one month’s salary in this case. The plaintiff did not dispute the computation of her terminal dues by DW 1 and I find that the same was duly paid.

423. For the reasons given above, I find that Maria Mrundeis entitled to an award of Kshs. 25,331/= being damages for wrongful termination of her services

24TH PLAINTIFF –PW7

424.   Charles Odongo Opondo (24th Plaintiff-Odongo) testified that he was working for the Bank as a senior messenger. He testified that on the 7/8/98 he was injured on the left ankle, ears lower limbs, chest and left shoulder as a result of the bomb blast. He testified that he went to Jamii Clinic at Ongata Rongai where he was treated and discharged. He was then referred to Dr. Tanga, a traumatologist. He was also referred me to Dr. Gikonyo Kabeu who is an ENT specialist. He told court that he is currently using a hearing aid and is registered with persons with disability. He testified that he was dismissed for uttering false medical claim of kshs.53,360/=.  After his dismissal from the bank he was asked to see professor Mbindyo to examine him and write a report.  He told court that he had a loan with the bank which after his dismissal he had to pay at commercial rate.

425. Dw2 testified that the medicine prescribed and issued to Odongo were not consistent with the injuries.  He told court that there were no mentions of what the investigations were i.e. in terms of the x-rays or lab tests.  He testified that the costs were simply lumped together and a receipt issued.  Dw2 testified that Odongo’s injuries were physical yet medicines are for fungal and bacterial infections. He testified that on 15/10/1998 medications for antifungal was given by the doctor without carrying out any investigations and Odongo was charged 20,000/=. Dw2 further testified that the ear problem was not related to the physical injuries.

426. The plaintiff submitted that on 7/8/1998 Odongo sustained injuries as a result of the bomb blast and that he sought treatment for the same. Under the medical insurance compensation scheme all members of staff who had been involved in the bomb blast would be reimbursed all expenses they had incurred in getting treatment and further expenses incurred in seeking further treatment. All Odongo’s  claim forms were procedurally processed and duly paid. The plaintiff contends that the sequence of events leading to the defendant dismissing Odongo from its employ did not follow the laid down disciplinary procedures and he is entitled to severance pay, one month’s salary in lieu of notice and medical expenses incurred.  They argued the loss of livelihood that was occasioned pursuant to Odonog’s dismissal and the fact that he could not thereafter obtain gainful employment as his name had already been tarnished and listed in the Credit Reference Bureau (CRB), the sum of Kshs. 13,000,000/= should be awarded as general damages.

427. The Defendant contends that the medical claims submitted by Odongo for reimbursement were fabricated, exaggerated and/or faked and thus fraudulent. It was submitted that when the defendant’s investigators visited Dr Tanga’s office it was established that the carbon copy of receipts produced by Odongo did not have dates, amounts or signatures implying they were fraudulent. It was submitted that Odongo was not entitled to the reliefs sought in his pleadings.

a.  Whether the plaintiff fabricated or exaggerated any medical reports/documents submitted to the defendant for reimbursement with the intention of defrauding the defendant;

428. According to the first claim Odongo spent Kshs 31,000/- on consultations investigations and medication. The receipt is dated 12th September 1998 for the amount of Kshs 31,000/=. Dw2 testified that the medication given to Odongo were antibiotics and antifungal were not consistent with his injuries, as the injuries were physical. It was submitted that it was not possible to know which investigations were being carried out, whether it was for lab test or an x-ray.

429. The next claim form is dated 15th October 1998 for a claim of Kshs 20,000/-. Dw2 testified that in this second claim, Odongo was once again issued with an antifungal which does not correspond with the injuries. The defendant also submitted that it was established that the carbon copy of receipts produced by Pw7 did not have dates, amounts or signatures implying they were fraudulent.

430. Having considered the claim forms, I find that the treatment received by Odongo  is not consistent with the injuries that he had sustained and without any other evidence from the plaintiff or his doctor’s testimony, I find that Odongo has  failed to prove on a balance of probabilities that the was no good reason for his dismissal. Any reasonable employer in the circumstance would have had good reason to terminate his services.

b.Whether the plaintiff is entitled to the reliefs sought.

431. According to Odongo he  is entitled to Kshs 342,000/ as severance pay, medical expenses of Kshs 53,000/-, one month’s salary in lieu of notice and the sum of Kshs. 13,000,000/= as general damages. The defendant contends that Odongo  was not entitled to the reliefs sought.

432. Odongo’s claim for Kshs 53,000/- fails on the account of Dw1’s testimony. According to Dw1 the defendant did not recover the misappropriated amount of Kshs 53,000/- from the Odongo’s account since his account did not have the funds to meet the same. It emerged that his liabilities to the defendant were to a tune of Kshs 1,124,188 for a house loan and his current account had a debit of Kshs 76,661. 95/-. Dw1 testified that Odongo’s terminal benefits were Kshs 41,594/- out of which Kshs 4,500 was credited into his current account and Kshs 37,094 credited into his house loan account as indicated in the computation of terminal benefits produced on page 466 Pexh 2. Odongo is also not entitled to severance pay as he was not declared redundant.

433. As for general damages, there is no justification in seeking compensation for unfair termination as well as general damages for unlawful termination for victimization.

434. Charles Odongo Opondo proved that the procedure for his termination was unfair and unlawful and is thus entitled to Kshs 21,000/- as damages for wrongful termination of his services.

25TH PLAINTIFF- PW4

435.      Alice Sabiri Okemwa (25th Plaintiff-Alice ) testified that she was employed by the bank on the 9th January, 1992 as a messenger and terminated on 13th May 1999 for tendering false medical claims. She testified that on 7/8/1998 she got injured during the bomb blast.  She had cuts on both legs and experienced pain in the chest and shoulders.  She testified that the smoke she inhaled gave her allergies. She visited Dr. Walumbe at Muthurwa who cleaned and stitched the cuts and she was also given a tetanus injection. She received further treatment because of the pain on her shoulders.  She visited Dr. William at his clinic, Jibuti Clinic, situated at Luthuli in River Road. She consulted Dr. Walumbe who did the x-ray and provided lab services at his clinic. She testified that the defendant didn’t raise issues of the receipts and the amount indicated. Later the bank claimed she defrauded kshs.42, 146/= based on treatment and submitted claim forms. She testified that after her termination the bank referred her to Dr. Mbindyo for a second opinion.  She was charged in Criminal Case No. 2770/1999for uttering false claims and forgery of documents.  In that case the receipt of 12,600/= is alleged to be forged but she was found not guilty.

436. On cross examination she testified that she did not have the initial documents of her treatment from Dr. Walumbe. She testified that had physiotherapy because of the shoulder and chest pains.

437. DW2 testified that Alice’s treatment does not tally with the injuries sustained. He explained that the treatment would have been valid at the time of the injury and not 4 months after the injuries. He explained that cuts and bruises suffered in August would have healed 5 months down the line. He testified that at page 473 to 474 of Pexh 2, in the claim dated 8/2/1999 there was no medicine, only physiotherapy for Kshs 8,000/=.  He testified that in one of the claims the sum of Kshs 12,600/= is claimed for medications yet there is no medication prescribed.

438. The plaintiff submitted that Pw4 sought reimbursement of all medical expenses incurred and all her claim forms were procedurally processed and duly paid. It was submitted that Alice had made out a case of unlawful termination and is therefore entitled to the reliefs sought. The court was urged to take into consideration the dent occasioned upon the life of Alice and her family and the sum of Kshs. 14,000,000/= was appropriate for general damages.

439. The defendant submitted that Alice’s claim for medical expenses allegedly deducted is also baseless as the Bank did not in the first place recover from her since her account did not have funds to meet the same. It was argued that Pw4 cannot claim for a refund of what herself did not pay the bank although she received it through false medical claims.

a.  Whether the plaintiff fabricated or exaggerated any medical reports/documents submitted to the defendant for reimbursement with the intention of defrauding the defendant;

440. Alice testified that she did not produce receipts of her first visit to Dr. Walumbe which occurred at the day of the blast. The first medical claim is dated 3rd March 1999 for consultations on 29th January -1st February 1999. She was seeking reimbursement of Kshs 7,276 made up of consultation costs, cost of injections, x-rays and lab test cost for medication. She presented a receipt from Home Clinics & Laboratories for the amount of Kshs 6,200/- and she also a receipt from Mfangano Pharmaceuticals Ltd.

441. Her second claim is for consultations from the date of 4th January to 8th January 1999. In her claim Alice indicated that there were 5 consultations for which she paid Kshs 2,000/-, injections costing Kshs 3,500/- and x-ray and lab costs that were charged at Kshs 4,500/-. Rural Medical Clinic at Muthurwa issued a receipt for Kshs 10,000/-, Mfangana Pharmaceuticals Ltd issued Kshs 470/- for medication and a  receipt from Plaza x-ray services for Kshs 600/-.

442. Alice testified that she visited Dr. Walumbe in his facility at Muthurwa area. However the names in the two receipts are of different facilities, Home City Clinics and Laboratories and the other being Rural Medical Clinic. Secondly, the second medical claim reveal a discrepancy on the x-ray amount. The receipt from Rural Medical Clinic reveal that the Kshs 10,000/- was for consultation and treatment of Pw4 and the x-ray was done at Plaza x-ray services at the cost of Kshs 600/-. In the medical claim, it was indicated that the x-ray was done at Rural Medical Clinic.

443. On the final claim Kshs 11,800/- was spent at Jubuti Lane Clinic after Alice  consulted with Dr William and Kshs 12,000/- spent on medication. Although Alice visited the doctor and received costly treatment, there were no medication prescribed as per the claim form and the receipt from Mfangano did not detail the medicines bought from the chemist.

444. Dw1 testified that investigations were carried out and it was found that the receipts issued by Dr. Tanga were fraudulent as the carbon copies of the receipts produced by Alice did not have dates, amounts or signatures implying that they were forgeries. In the end I find that the defendant had good reason to terminate Alice for misappropriation of funds and any reasonable employer would have had good reason to discipline her in the circumstance.

b.Whether the plaintiff is entitled to the reliefs sought.

445. Alice in her plaint had claimed for severance pay of Kshs 204,856/-,  one month’s salary in lieu of notice         in the sum of 25,607/- and medical expenses deducted as fraudulent amounting to Kshs 42,146/-.

446. Alice  is not entitled to compensation of medical expenses in the sum of Kshs 42,146/- as Dw1 gave clear testimony that the amount was never deducted by the defendant because the amount in her  bank account was insufficient to cover the cost.

447. I now turn to the claim for severance pay, and as held above, there was no evidence by the plaintiff that she had been declared redundant and I find that she is not entitled to severance/ redundancy pay.

448. The plaintiff also claimed for general damages in the sum of Kshs 14,000,000/-. The defendant submitted that Pw4 was not entitled to general damages of Kshs.14, 000,000/- pleaded for in her submission. As per my earlier holding, there is no justification in seeking compensation for unfair termination as well as general damages and Pw4’s claim for Kshs. 14,000,000/= as general damages is without merit.

449. Having found that the procedure used by the defendant to dismiss the plaintiffs was not fair, Alice is thus entitled to one month’s salary Her salary at the time of her termination was Kshs.25,167/- as evidenced by her pay slip for January, 1999 at page 483 of P. Exh.2. I award Alice Sabiri Okemah, Kshs25,167/- being damages for wrongful termination of her services.

26TH PLAINTIFF-PW6

450.      Ricarda Wanjira Gutu (26th Plaintiff-Ricarda) testified that she was secretary with the bank. She adopted her witness statement dated 30th May 2013. She was treated by Audi Tanga for severe back pains and bruises on the left leg and right hand. She also sought treatment from Abasai Kola a skin specialist.  She was also referred Dr. Mulundi at Kenyatta National Hospital who treated her for back pains. She submitted her claim forms together with other receipts issued by the respective doctors and the defendant approved her claims.

451. On cross examination she testified that she recalled receiving treatment at a clinic in Ngara but could not remember the name. She testified that she had only mentioned that she had a cut on the right hand and knee but made no mention of a backache. She explained that when her skin became itchy she saw Dr. Kola is a skin specialist and was given injections for skin allergy.

452. Dw2 testified that the Ricarda saw the doctor on the 3/11/98, 2 months after the bomb blast and the treatment indicated is for an infection which is unrelated to the cut wounds on the left and right knee. He testified that no medication was given for the cut wounds. He discredited Ricarda’s assertions that a surgeon received Kshs 30,000/= for exercise and physiotherapy on the plaintiff by pointing out that a consultant surgeon does not offer exercise and physiotherapy services.

453. The plaintiff submitted that she had made out a case of unlawful termination and is therefore entitled to the reliefs sought. The plaintiff advanced that the court in awarding the reliefs sought ought to be guided by her length of service, in this case20 years, at the point of termination and the relevant compensation in lieu of notice in light of the provisions of Section 35 and 36 of the Employment Act, 2007.

454. The defendant submitted that Ricarda’s claims amounted to Kshs 200,000/-. The defendant vide its letter dated 4th August 1999 informed her that her current account would be debited with Kshs 200,000/- being the amount misappropriated but the Bank never recovered the amount as her account did not have sufficient funds. The defendant  urged the court to find that plaintiff fabricated, exaggerated and/or faked her medical claims. The defendant submitted that the redundancy claim of Kshs.509,316/- has no meirts whatsoever as her termination was not on account of redundancy but summary dismissal. It was also submitted that the sum of Kshs.24,000,000/- as general damages has no legal basis whatsoever.

a. Whether the plaintiff fabricated or exaggerated any medical reports/documents submitted to the defendant for reimbursement with the intention of defrauding the defendant;

455. The first claim is dated 7th January 1999 after Ricarda consulted Dr. Audi Tanga and spent Kshs 24,000/-. According to Dw2 the treatment indicated on her claim forms at page 487 -488 of P. Exh. 2 were not related to the alleged cut wounds. That there was no evidence tendered by the plaintiff showing treatment of the cut wounds which were injuries he sustained as a result of the blast. Section 107(1) of the Evidence Act provides that whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. In light of Dw2’s expert opinion I find that Ricarda failed to prove her claim for Kshs 24,000/-was genuine and related to injuries sustained as a result of the bomb  blast.

456. Similarly, Ricarda failed to prove her claim for Kshs 2,000 in the medical claim form dated 14th December 1998. It was her claim that she saw Dr. Abasa Kola, a skin specialist, but she failed to establish the nexus between her bruises sustained as a result of the blast and her dermatological issues. I also note that in any case, the consultation with Dr. Kola occurred in November of 1998 and with no explanation as to why the blast had caused her skin to be irritated 3 months after the blast, I find that she failed to establish her claim.

457. In her claim form dated 15th January 1999, for 5 consultations between 18th December to 23rd December Ricarda  requested to be reimbursed Kshs 24,000/-. Dw2 testified that the treatment does not tally with the injuries that had been sustained by Ricarda. Dw2 explained that the injuries or wounds sustained would have probably have healed. Ricarda further claimed that she spent Kshs 45,000/- for massages, physiotherapy and breathing exercises and was issued with a receipt by Dr. Tanga Audi in respect of the treatment. Dw2 testified that it was not possible for Ricarda to receive the treatment sought in the said facility and that the treatment does not tally with her injuries.

458. On 1st December 1998 Ricarda  was issued with a receipt for 20 physiotherapy sessions and asthma-like therapy and was charged Kshs 30,470/-. Dw2 testified that surgeons do not offer physiotherapies and further added that the treatment did not tally with the injury sustained.

459. Ricarda’s  claim at page 500 of Pexh 2 indicate that after consulting Dr Tanga he prescribed medication which according to the testimony of Dw2 were totally unrelated to the alleged injuries.

460. On the final claim, Pexh 2 at page 502, Ricarda sought to be compensated Kshs 30,000/- incurred on account of physiotherapy, exercise and breathing humidifiers.

461. The defendant argued that Ricarda’s claim was fraudulent on the basis that the carbon copy for some of Ricarda’s receipts, receipts 3757 and receipt number 3071 although they bore her name they were blank and did not have the amount charged.

462. Having considered the evidence presented by both parties I find that there were sufficient grounds for termination of Pw6’s employment on the ground of misappropriation of funds.

b. Whether the plaintiff is entitled to the reliefs sought

463. Ricarda has sought the following;

i.  Severance/Redundancy pay                           Kshs 1,388,100/-

ii. One month’s salary in lieu of notice              Kshs 69,405/-

iii.   Medical expenses deducted as fraudulent  Kshs 200,000/-

464. I will first determine whether the plaintiff is entitled to Kshs 200,000/- deducted by the defendant as fraudulent while the amount was genuinely incurred. Dw2 testified that the medical expense for Kshs 200,000/- claim is not payable since the defendant did not recover the amount from Ricarda  It was also Dw1’s testimony that her  terminal benefits were Kshs 64,567. 65 and the amount was credited into her account. Ricarda had also accrued 31. 29 leave days and she was paid for the accrued leave days as per page 31 of the Defendant’s second further list of documents.

465. On the claim for severance pay, I am inclined to agree with the defendant’s argument she is not entitled to the award of Kshs 1,388,100/- for reasons that she was not declared redundant by the defendant.

466. Although the defendant have established that it had good reason to dismiss the plaintiff, the fact that the procedure used for her termination was unfair, Ricarda is thus entitled to one month’s salary . Her claim for general damages in the sum of Kshs. 40,000,000/= is hereby dismissed on the basis that there is no justification in seeking compensation for unfair termination as well as gen

467. Consequently, Ricarda Wanjira Gutu is awarded Kshs 69,405/- being damages for wrongful termination of her services.

27TH PLAINTIFF – PW12

468.    John Nzioka Ngwenze, (27th Plaintiff-Nzioka ) was also on duty when the bomb blast occurred. Before that day, he had worked for the defendant for 12 years. He testified that he sustained a cut on his left leg below the knee and on the upper lip. He inhaled dust and got a bad shock from what had happened. John recalled that he sought treatment at Kenda House from one Dr. Njoroge, who treated his cuts and gave him medicine for his blood pressure which was high. He testified that he got admitted at Tala Medical Clinic on the same day and was discharged on Saturday.

469. John testified that he made his claim for the consultations he had with Dr. Njoroge which were approved but on 10th May 1999, he received a letter from his employer alleging that he had misappropriated the bank’s funds by making false medical claims. He was accused of defrauding the bank of Kshs. 61,380/= and was required to show cause why he should not be disciplined in accordance with the CBA. He testified that he received another letter dated 11th May 1999 suspending him from work and got a dismissal letter dated 13th May 1999. He told the court that three months after his dismissal, the Human Resource Manager Mr. Wamae told him to accept liability for him to be considered for placement under contract and to enable him pay his loan at staff rate which was Kshs. 800,000/= at the time. He accepted liability and wrote the letter but was nevertheless dismissed from employment.

470. John testified that he got a letter from the bank dated 14th September 1999 claiming that he had misappropriated funds to the tune of Kshs. 61,380/= and that they had evidence to prove this. He wrote a letter dated 19th September 1999 asking the bank to consider the circumstances surrounding the dismissal. He requested for reinstatement and stated that in his 12 years of service he had not received any warning letter. He also asked them to consult the doctor if there was any problem with his claim.

471. John claimed that the chest problems he had gotten as a result of the bomb blast developed into asthma. He also complained that he had suffered a lot of agony and public ridicule and had not gotten a good job since. His prayer was that the bank be ordered to reinstate him, pay him his dues and allow him to pay off his loan at staff rate.

472. During cross examination, John testified that when the bomb blast occurred, his cousin who worked along Mfangano Street had taken him to Dr. Njoroge who dressed his wound and treated the pains in his chest. The doctor also agreed to treat him and he would pay him later. He denied making up the consultations and showed the court two scars he had on his right leg. He also stated that his medical claim was for Kshs. 41,430/= being a sum of Kshs. 20,280/= and 21,150/= and not Kshs. 61,380/= as alleged by the bank. Regarding his admission at Tala Medical Centre, John testified that his family had paid for the expenses and he did not make a claim to the bank. He also stated that his monthly pay was Kshs. 45,004/= and stated that his last pay slip had been issued in April 1999.

473. In response, DW1 stated their investigations had revealed that the receipts issued by Dr. Njoroge and the plaintiff’s alleged admission at Tala Medical Clinic were fabricated. He stated that as a result of his fraudulent claim, John was dismissed from employment. DW 1 testified that the plaintiff requested to be allowed to resign through a letter dated 23rd August 1999 and the bank accepted his resignation with effect from 13th May 1999. The defendant also called DW2 who examined the treatment noted down in the plaintiff’s claim form and found that it did not tally with the injuries he claimed to have suffered.

a. Whether the plaintiff fabricated or exaggerated any medical reports/documents submitted to the defendant for reimbursement with the intention of defrauding the defendant;

474. John is accused of attempting to defraud the defendant of Kshs. 61,380/=. He insists that his claim was for a total of Kshs. 41,430/=. He claimed Kshs. 20,280/= in his initial claim form dated 22nd September 1998 for 5 consultations on 7th August 1998, 10th August 1998, 12th August 1998, 14th August 1998 and 22nd September 1998 (D.exh 6 pg. 33 to 34). The claim was supported by a receipt issued on 22nd September 1998 for the sum of Kshs. 20,280/=.

475. In his second claim form dated 14th February 1999, John claimed a total of Kshs. 21,150/= (P. ex 2 pg. 516 & 517).The claim form indicated that he had visited his doctor for consultations on 7th October 1998, 14th October 1998, 21st October 1998 and on 29th October 1998. A receipt for Kshs.21,150/= dated 29th October 1998 was issued in support of the claim. He also produced a clinical attendance card issued by Dr. Njoroge listing his various appointments with the doctor.

476. The defendant alleged that John had attempted to defraud it off a sum of Kshs. 61,380/= but the medical claim forms produced in court only proved that the plaintiff made a claim for Kshs. 41,430/=. DW 2 testified that the indication of dressing in the first claim form dated 22nd September 1998 showed that the plaintiff sustained injuries from the blast but the treatment was not within the purview of an ENT surgeon. He also noted that the doctor was supposed to keep the listed medication in his office.

477. On the second claim submitted on 29th October 1998, DW2 testified that the 1st and 2nd drugs mentioned in John’s claim for his consultations between 7th October 1998 and 29th October 1998 were painkillers and antibiotics but the dosage and duration of the medicine were not mentioned. He also stated that the antibiotic was the practical treatment for a person who had been treated for a UTI infection and did not relate to the injuries suffered from the bomb blast. DW2’s conclusion was that the claim had no relationship to the injuries sustained.

478. It was not shown that the plaintiff was aware that Dr. Njoroge was unqualified to treat his injuries or that he knew that the doctor was not allowed to dispense drugs from his clinic. That said, DW2’s evidence that the medication listed in the claim form submitted on 29th October 1999 did not tally with the injuries sustained was not challenged. In my view, this was a valid reason for the defendant to dismiss the plaintiff from employment.

b. Whether the plaintiff is entitled to the reliefs sought.

479. Among the reliefs sought by John were an order for payment and account of his pension, general damages for unlawful termination and loss of employment as well as damages for unlawful dismissal including;

a.Severance /redundancy pay Kshs. 82,506 x 13 years x 13 years- Kshs. 1,072,578. 00

b.One month’s pay in lieu of notice- Kshs. 82,506. 00

c.Medical expenses deducted as fraudulent while genuinely incurred- Kshs. 61,380. 00

480. The plaintiff’s claim for severance/ redundancy was not proved and the same is dismissed.

481. As for whether the plaintiff is entitled to damages for wrongful termination, it was clear that he was not accorded a hearing before the disciplinary committee as stipulated in the Staff Manual. PW12 was issued with a letter accusing him of misappropriating funds on 10th May 1999 and by 13th May 1999 he had already been dismissed from employment. John testified that he had been coerced into accepting liability and resigning in order to get his terminal dues. Although the plaintiff did not prove that he had been coerced to write the resignation letter, the purported resignation of the plaintiffs after they had dismissed not only seemed like an afterthought but was not procedural. Since the defendant did not follow the process laid out in the Staff Manual to dismiss the plaintiff, I find that he is entitled to an award of damages of a month’s pay .

482. The plaintiff made no mention of his pension in his evidence. He testified that he was dismissed on 13th May 1999 and got his last pay slip in April. DW1 testified that PW 12 had the following liabilities with the defendant by the time he was dismissed from employment;

a.  Medical expenses - Kshs. 61,380/=

b. Farm loans - Kshs. 57,614. 80

c.  Farm development - Kshs. 758,416. 50

d. Personal loan - Kshs. 5,850/=

483. He also stated that the amount of Kshs. 61,380/= claimed as medical reimbursement had been deducted from John’s terminal benefits but the bank was unable to recover all the sums owed to it since the plaintiff’s account lacked funds. His evidence was affirmed by the computation of terminal benefits produced by the plaintiff (P. Exh. 2 pg. 520). He informed the court that John’s salary was Kshs. 45,004/= and his terminal dues amounting to Kshs. 67,200. 75 had been used to offset the debt in his Coop Card Sacco account to the tune of Kshs. 46,364 and his Farm Development account to the tune of Kshs. 20,836. 05. He stated that John had 76. 7 accrued leave days which were duly paid to him as per the computation of terminal benefits. This computation by DW1 was not challenged by the plaintiff. I therefore find that he was duly paid his terminal dues.

484. In his testimony, John urged the court to reinstate him to employment and allow him to pay his dues at staff rate but he did not plead these reliefs which would in any case be impossible to grant given the number of years that have since lapsed. PW 12 also claimed that medical expenses totaling to Kshs. 41,430/= had been deducted from his account. It is however clear from his computation of terminal benefits that no such deduction was made.

485. In his submissions, the plaintiff’s counsel urged the court to award the plaintiff general damages not lower than Kshs. 26,500,000/= considering the damages occasioned on his life. As held above, general damages were not in the class of reliefs awardable under the previous legal regime.

486. In the end I find that John Nzioka Ngwenze is entitled to an award of Kshs. 82,506 /= being a month’s salary in lieu of notice.

28TH PLAINTIFF-PW26

487.      Julius Mwanzia Mutunga (28th Plaintiff- Julius) adopted his witness statement as his examination in chief.  He recalled that on 7. 8.1998 sustained injuries as a result of the bomb blast. He had injuries on his fingers and right cheek.  He was treated at Nairobi Hospital and discharged.  He saw other doctors at Kenyatta Hospital as well as Dr. C.J. Okumu of Tiriki and Dr. Wambugu of Afya Centre. He was dismissed and then he was told to write a letter of resignation to get his benefits and that his loans could be paid at a staff rate. He reiterated that his medical claims were not false.

488. Dw2 testified that the medical claim showing the treatment received by Julius did not tally with the injuries he claimed to have sustained.

489. The plaintiff submitted that Julius did seek a reimbursement of all medical expenses incurred and all of his claim forms were procedurally processed and duly paid. On 10th May he was served with a show cause letter why disciplinary action should not be taken against him for uttering false medical claims. He was accused of defrauding the defendant Kshs 154,220/-. It was advanced that Julius had made out a case of unlawful termination and is therefore entitled to the relief sought. The court was urged to consider the damage occasioned on Julius’s life as it deliberates on the general damages to be awarded. It was proposed that the court should consider an award not lower than the sum of Kshs 23,500,000/-.

490. The defendant submitted that Dw2 concluded all the claims submitted by Julius were not related to the injuries of 7/8/98. The defendant contends that the evidence on record, and in particular, the evidence of DW2 which was not challenged in cross examination shows that the claims by Julius were fabricated, exaggerated and/or faked. It was further submitted that the award of Kshs.23,500,000/- as general damages has no legal basis and the same ought to be dismissed.

a. Whether the plaintiff fabricated or exaggerated any medical reports/documents submitted to the defendant for reimbursement with the intention of defrauding the defendant;

491. In his claim dated 27th January 1999 (Pexh 2 page 523) Pw26 claimed for reimbursement of Kshs 21,600/-. Dw2 testified that the claim at pages 522 to 523 of P exhibit No. 2 is in respect to 5 visits although the injuries treated therein do not relate to the injuries sustained by Julius. He explained the injuries having been sustained 5 months earlier and it was not be possible that the wounds were still being dressed at this time. Dw2’s evidence was not challenged on cross examination and I find that the treatment did not relate to the injuries sustained as a result of the bomb  blast.

492. According to Dexh 6 at page 42-44, Julius claimed for reimbursement of Kshs 10,200 on 17th December 1999 to cover the costs of consultation, injection costs, laboratory costs and medicines. He was issued with a receipt by the William Ouko Memorial Clinic for the amount of Kshs 10,200/-. Dw2 testified that it was his opinion that the ailments treated as per the medical claims do not relate to the injuries of 7th August, 1998.

493. On 30th November 1998 Julius (see Dexh 6 page 46) claimed medical expenses amounting to Kshs 5,400/-, he presented receipt no 2826 issued to him after he made payments at the William Ouko Memorial Clinic. According to his receipt the total cost of his medical expenses was Kshs 5,400/-. Dw2 testified that the medicines, deploxoin (an antibiotic) and Fasigyn (used in yeast treatment) do not relate to the injuries sustained by Julius on 7/8/98.

494. On 4th January 1999, he sought reimbursement of Kshs 21,370 (Dexh 6, page 49). The receipt supporting his claim for Kshs 21,370/- shows that he first visited the hospital on 7th December 1998 and thereafter had a total of 5 consultations, he incurred laboratory costs, medicines and other surgical charges. Dw2 testified that the cream prescribed therein was for a scar that has healed.  He explained that if the patient had a scar it could have been dispensed.  He further testified that a medical provider will not give the cream as they are not stocked in his office. He concluded that the ailments did not relate to the immediate injury. He further testified that the particular claim has other charges described as surgical charges but does not detail the surgical procedure applied.

495. On 21st January he made claim to Kshs 14,500 incurred on account of his medical expenses. As per his receipt No 2895 Julius spent the amount on tests and medication. Dw2 testified that the treatment profile Prozac is an anti-depressant and has no relation to the injuries of 7/8/98.  Dw2 also testified that the caloric test and PT audiometry relate to an ear problem and not cut injuries sustained by of 7th August, 1998.

496. On 2nd February 1999 he claimed for Kshs 8,800/- after receiving treatment at Tiriki Lane Dispensary and was issued with a receipt of a similar amount.  Dw2 testified that from the medication prescribed to Julius, he treated with 2 antibiotics every day for 3 days.  He testified that considering the duration of Julius’s injuries he would not have been on antibiotics.

497. On 29th January 1999 he claimed Kshs 21,600/-after visiting Tiriki Lane Dispensary. Dw2 testified that according to Julius’s 5 consultations at Tiriki Lane Dispensary, Pw26 was given rocephin and augmentin which are both antibiotics. Dw2 also testified that Julius had dressing on a daily basis yet it had been 5 (five) months after his initial injury and his cut wounds would have healed.  Dw2 told court that the cut wounds would heal within a week or 2 weeks.

498. In his final claim, he claimed to be reimbursed 28,100/-after visiting and receiving treatment at Tiriki Lane Dispensary.Dw2 testified that the treatment did not relate to Julius’s injuries.

499. Having analyzed both the plaintiff’s and the defendant’s evidence, I find that there were medical claim forms presented by Julius  that the defendant believed to be fraudulent on account of the treatment administered on Pw26 vis-a-vis the injuries Pw26 claimed to have sustained. From the testimony of Dw2, Julius did not seek treatment for his cut wounds. Dw2 also questioned why some of the alleged cut wounds were being dressed 5 months after the injuries. It was Dw2’s opinion that any of the cut wounds sustained as a result of the blast would have healed after 5 months.

b.Whether the plaintiff is entitled to the reliefs sought.

500. Julius in his claim seeks severance pay in the sum of Kshs 275,310/- one month’s salary in lieu of notice Kshs.39,330/- and medical expenses of Kshs.154,000/- deducted by the defendant.

501. Dw1 testified that at the time Julius left the bank his net dues were Kshs 43,487. 40/- which were credited into his house loan account. His accrued leave days were 28. 66 days and they were duly paid to him as per the computation of terminal benefits. Dw1 told court that as at 5th April 1999 Julius liabilities with the bank were house loan in the amount of Kshs 2,017,941. 60/- and medical expenses of Kshs 154,220/-.Dw1 testified that Julius had authorized the defendant to recover the medical claims totaling to Kshs 154,000/- but the same was not recovered as he did not have funds in his account. Julius’s claim for medical expenses deducted by the defendant therefore fails.

502. In accordance with my above analysis, the Court finds and holds that the Julius’s dismissal was procedurally unfair and his claim for wrongful dismissal is merited and thus entitled to one month’s salary in lieu of notice. It was not disputed that Julius’s salary was Kshs 39,330. Dw1 testified that Pw26 was earning a basic salary of Kshs 39,330 as indicated on the computation of terminal benefits.

503. The plaintiff is not entitled to severance pay for reasons that his position was not declared redundant. On the award of general damages, I find that Julius not entitled to the award of Kshs 23,500,000/- because there is no justification in seeking compensation for unfair termination as well as general damages.

504. In the end, I hereby award Julius Mwanzia Mutunga Kshs 39,330/- being damages for wrongful termination of his services.

30TH PLAINTIFF- PW8

505.   Ignatius Lilechi Luyenji (30th Plaintiff-Ignatius ) in his claimed seeks the following;

i.    Severance/Redundancy pay Kshs  70,000 (28,000x 5,000x ½)

ii.   One month’s salary in lieu of notice Kshs 28,000/-.

iii.   Amounts deducted as alleged medical expenses claimed while nothing was claimed – Kshs  9,850/-

506. Ignatius Lilechi Luyenji testified that he was a clerk with the defendant.  On the 7/8/1998 he was at the bank working on the ground floor but sustained no physical injuries. He testified that the defendant covered employee’s medical and that he was entitled to Kshs.24,000/=.He testified that staff injured as a result of the bomb blast were entitled to kshs.200,000/=. He claimed that he was entitled to Kshs.24,000/= under the defendant’s normal scheme. That  upon falling sick, he sought medical services and was reimbursed the cost of treatment.  He testified that he did not claim from the bomb blast fund. He was later informed that he had claimed 9,580/= of the bomb blast funds and suspended and later terminated.

507. Dw2 testified that it was not possible to ascertain what Ignatius  was being treated for. Dw2 in his witness statement stated that it was later discovered that Ignatius had also submitted another false claim of Kshs 35,320/-.

508. The plaintiff submitted that the sequence of events leading to the  defendant dismissing Ignatius  from its employ did not follow the laid down disciplinary procedures in the collective bargaining agreement, staff manual and contravened Section 41 of the Employment Act, 2007 all of which provided for a fair hearing before dismissal. It was submitted that Ignatius has made out a case of unlawful termination and is therefore entitled to the reliefs sought.

509. The defendant submitted that Ignatius admitted that he did not sustain any physical injury from the bomb blast and yet he submitted a medical claim which appears at page 29-30 of the Defendant’s Fourth List of Documents filed on 13th February 2015 and marked as Dexh. 8. They further submitted that Ignatius after his dismissal admitted having uttered a false medical claim in his letter to the Defendant dated 13th October, 2000, which appears at page 35 of the D. Exh. 8. The defendant urged court that Ignatius  summary dismissal was not wrongful and unlawful and thus Pw8 is not entitled to the reliefs sought.

a. Whether the plaintiff fabricated or exaggerated any medical reports/documents submitted to the defendant for reimbursement with the intention of defrauding the defendant;

510. Ignatius testified that his claim did not relate to any bomb blast as he was not injured from the bomb blast. Dw2 testified that Ignatius had no physical injuries. The plaintiff having proved that none of the injuries were as a result of the blast and he is thus entitled to Kshs 9,850/-.

511. Ignatius resignation letter in the defendant’s second further list of documents at page 69 was written on 13th October 2000 after his employment was terminated therefore no effect on the relationship of the parties for reason that the earlier termination letter dated 5th August 1999 had severed the employee-employer relationship. The defendant’s letter dated 5th May 1999 (Dexh 3 at page 31) that led to the discipline of Ignatius  was on the allegation that he  had defrauded the bank Kshs 9,580/-. Taking into account the plaintiff’s oral evidence that he made no claim under the bomb blast medical claim available to the defendant’s employees that had sustained injuries as a result of the blast, I find that his termination was unfair in procedure and substance.

b.Whether the plaintiff is entitled to the reliefs sought

512. On the award of general damages the plaintiff submitted that Ignatius did not receive his benefits upon being unlawfully dismissed and the fact that he could not thereafter obtain gainful employment as his name had already been tarnished and listed in the Credit Reference Bureau (CRB), entitles him to an award Kshs. 18,000,000/= as general damages. Ignatius also sought severance pay, one month’s salary in lieu of notice and medical expenses deducted by the defendant.

513. Dw1 testified that the amount of Kshs 9,850/- was not deducted from Ignatius’s account as his account did not have sufficient funds to cover the cost. It therefore follows that the claim for medical expenses deducted by the defendant in the amount of Kshs 9,850/- fails. It has already been established that Ignatius was not declared redundant and his claim for severance pay of Kshs 70,000/- also fails.

514. As for general damages, there is no justification in seeking compensation for unfair termination as well as general damages for unlawful termination for victimization (see Peter Gachenga Kimuhu v Kenol Kobil Limited supra).

515. Having found that the termination of Igantius contract of employment was unfair in procedure and substance he is thus entitled to one month’s salary in the sum of Kshs 28,161/-.

516. I award Ignatius Lilechi Luyenji, Kshs. 28161/- being damages for wrongful termination of his employment.

517.  Joyce Njeri Mwaura (19th Plaintiff-Joyce), Sophie Ndalana (23rd Plaintiff-Sophie) and George Ngarai Shapmton (29th Plaintiff-George) had claimed that the defendant had unfairly terminated them from employment and sought reliefs as per paragraph 19C of the plaint. The plaintiffs’ case was closed without the said plaintiffs testifying. These 3 plaintiffs (Joyce, Sophie and George) having failed to prove their case, I find that their claims against the defendant is unmerited and hereby dismissed in its entirety.

518. The plaintiffs sought an order of account for each plaintiff’s pension due upon cessation of employment and that the same be paid and/or taken in account on payment of damages in accordance with the rules governing the plaintiffs’ employment. From some  the plaintiffs exhibits there was an indication of pension sums. My view is that pension was a specific damage claim which should have been specifically pleaded and proved. There was also no evidence adduced to support the claim for general damages for defamation and injurious falsehood as published against each of the plaintiffs.

519. I want to appreciate the advocates who conducted this case for their patience and dedication to their clients and keen input in the matter. The parties have also patiently waited for this judgment. I apologies for the day in not delivering it on time. This was due to pressure of work and the voluminous proceedings, documentary exhibits and lengthy submissions.

520. Final Orders; Judgment is entered for the following plaintiffs  with interest at Court rates from date of Judgment as follows;

i.     Beatrice Nthenya Kyalo…………….…Kshs. 28,199/-

ii.    Margaret Njeri Wokabi………………..Kshs.31,022/-

iii.  Bancy Wanjiku Ngonjo………………..Kshs.20,269/-

iv.   Morris Mwadime Mwawasi…….…...Kshs.24,993/-

v.   Eric Muraya Mwangi…………….……Kshs.65,023/-

vi.   Lucia Karimi David……………….……Kshs.34,407/-

vii.   George Jacob Ocholla…………………Kshs.44,067/-

viii.  Mary Mwikali…………………..….Kshs.17,000/-

ix.   Florence Aoko Ng’onga……….….Kshs.21,137/-

x.  Godfrey Mathis Henya………......Kshs.24,105. 35

xi.   Joel Busie Wanyonyi…………...…Kshs.36,266/-

xii.   Richard Leposo Pulei……..…..…Kshs. 26,126/-

xiii.    Caroline Nzioka……………………Kshs.38,271/-

xiv.  Urbanus Kieti Mutinda………..…Kshs.46,677. 40

xv.     Mary   Wambui Wahome………..Kshs.60,000/-

xvi.    Richard Kiptoo Kiprop…..………Kshs.67,094/-

xvii.   John Bundi Magiri………………Kshs.41,000/-

xviii.  Rita Naliaka Situma…………….Kshs.56,833/-

xix.   Lucy Wanjiru Mbugua……….…Kshs.42,443/-

xx.    Patrick Muinde Mackenzie.….Kshs.57,607/-

xxi.   Maria Mrunde………………...…Kshs.25,331/-

xxii.   Charles Odongo Opondo…...…Kshs.21,000/-

xxiii.  Alice Sabiri Okemwa…………..Kshs.25,167/-

xxiv.   Ricarda Wanjira Gutu…………Kshs.69,405/-

xxv.    John Nzioka Ngwenze…….…Kshs.82,506/-

xxvi.   Julius Mwanzia Mutunga….…Kshs.39,330/-

xxvii. Ignatius Lilechi Luyenji….…Kshs.28,161/-

c. Who bears the costs?

521. Costs usually follow the event.  In this case the plaintiffs who testified have been successful in all their claims for damages for wrongful terminations of their services. I therefore award them the costs of the suit. Interest on the amounts awarded is at court rates and is from the date of judgment until payment in full. It is so ordered.

Dated, signed and delivered at Kisii via email on the 27th day of May 2020

R.E.OUGO

JUDGE

Sent via Email to the following Advocates;

Mr. Gichuki Kingara .. For the Plaintiffs (email address- pkingara@gmail.com)

Mr. Kimondo..  For the Defendant (email address-kimondomubeaadvocates.co.ke)

Ms. Rael    Court Assistant