The Court of Appeal has suspended the proceedings in a case where a former Cooperative Bank official has sued the lender over alleged harassment and wrongful dismissal
Justices Daniel Musinga, Dr Imaana Laibuta and Ngenye Macharia suspend proceedings as sought by the lender, pending the hearing of an application by the bank challenging the decision by trial court to close the case without hearing its witnesses.
Kennedy Wanjohi Mwangi who has was the Bank’s Central Staff Committee chairman sued the bank over harassment and illegal termination.
The bank’s witness failed to appear in court on time and the trial judge ordered the lender to close its case.
“There was also no evidence that she had previously deliberately failed to attend court. Therefore, justice demands that the applicant be accorded an opportunity to ventilate the merit or otherwise of its appeal,” said the judges.
While allowing the Bank application, the judges noted that stay of proceedings is a drastic judicial action that should be sparingly and rarely invoked as it may impede the right of access to justice, and should only be issued in the clearest of cases.
The court observed that from the circumstances, it was clear that the failure of bank’s witness to arrive in court on time was inadvertent and not occasioned by a self-made excuse.
The witness, it was noted, gave notice that she would be late to appear in court due to traffic jam, then ended up in the wrong court.
The judges noted that this could happen to anyone not too familiar with court houses.
The court said Coop’s appeal is arguable and raises the issue of whether or not the Employment and labour relations court judge wrongly exercised her discretion, and whether cooperative Bank was afforded a fair hearing before it was directed to close its case.
“We are persuaded that the intended appeal is arguable and are constrained at this stage not to say more, lest we embarrass the bench that ultimately hears the appeal,” said the judges.
Wanjohi rose from a casual employee of the Bank and rose through the ranks to a Swift Authentication Officer and was subsequently appointed as the chairman of the bank’s Central Staff Committee.
He claims that he was harassed by the and eventually dismissed, in a case pending before court.
He accuses the bank of violating his employment rights and the termination was wrongful, unfair, unjustifiable and illegal. He is seeking to be paid severance pay, general damages and interests.
The Bank denied the claim and filed a counterclaim seeking Sh1,737,210 and a declaration that the termination was lawful.
Wanjohi adduced his evidence and closed his case. On the day the suit was slated for defence hearing, the Bank’s witness was not in court and the court ordered the defence to close its case and directed the parties to file submissions.
The bank has challenged the decision saying it was denied the right to be heard.