By The Weekly Vision Team
A former senior employee with the Co-operative Bank of Kenya has achieved a preliminary victory in a fraud case against her following a Notice of Motion issued by the Employment and Labour Relations Court.
The court has mandated the bank to serve a witness summons to Mr Harrison Mwendo, a representative of the Banking Fraud Investigation Unit, requiring him to present documents and provide testimony regarding the findings of the unit’s investigations into the alleged fraudulent activities involving Slyvia Kadenyeka Mulusa. The bank was further ordered to ensure Harrison Mwendo of the BFIU be compelled to produce, within 30 days from the date of the order, certified copies of all relevant documents relating to the unit’s investigations and findings on the reported fraudulent dealings by Slyvia Kadenyeka Mulusa.
She had disputed the allegations and averred that she was summarily dismissed on account of gross misconduct and breach of the Respondent Bank’s Staff Manual and Business Code of Conduct and Ethics as she had applied for a fraudulent staff loan towards her purchase of a piece of land, L.R. No. Kajiado/Kitengela/107016. The bank avers that this fraudulent staff loan involved a well-calculated scheme in which, at the stage of valuation of the piece of land before the approval of the loan application, she and other employees of the bank colluded with Musit Investment Limited being the vendor and Savannah Consulting Ltd, the valuer, to overvalue the property with the sole intent of diverting funds.
However, the bank avers that its preliminary investigations revealed that there could have been a fraudulent scheme between the valuers, vendors, and employees, including the claimant, to which it lodged a criminal complaint at the Banking Fraud Investigations Unit (BFIU). The bank alleges that the investigations revealed that Mulusa colluded with the vendor and valuer to the extent that Mulusa and the vendor had agreed on the actual purchase price and value of the piece of land.
According to the report, the valuer inflated the actual market value of the property by a sizeable amount, and the inflated valuation report was presented to the bank to disburse the loan at the inflated sum. Further, the report revealed that once the loan proceeds towards the purchase of the piece of land were disbursed by the bank on behalf of Mulusa,. The vendor would retain the actual purchase price and remit the balance to the claimant.
Mulusa avers that to prove this, the police at BFIU have in their possession and custody the Statement of Account and other supporting documents that demonstrate the remittances and diversion of funds from the vendor to Mulusa. It’s Mulusa’s case that since the documents are in the possession and custody of BFIU, it is unable to produce them as part of its evidence.
She avers that its list of witnesses dated 7/11/2023 listed Harrison Mwendo, an Investigating Officer at BFIU, who investigated the complaint on the fraudulent action by Mulusa to testify and give evidence. However, due to the nature of his work, he has advised that he can only attend and testify if summoned by the court.
The judgment dated July 26, 2024, by Judge Anna Mwaure, reads, “In view of the foregoing, the respondent has proved that Harrison Mwendo of the Banking Fraud Investigation Unit or any other designated investigating officer’s evidence or testimony is necessary in this case.”
Mulusa has laid down that it surrendered all relevant documents to BFIU and that BFIU investigated the allegations against her, which led to her dismissal, so his testimony is relevant to render justice herein; furthermore, the banking fraud investigating unit witness is not in a position to appear in court to testify without the court summons. “The court finds there is no prejudice that will be suffered by the claimant if the witness is given an audience to testify in court. The claimant will have an opportunity to cross-examine the witness.”
The final order reads, “The court holds the respondent/applicant is entitled to the prayers in its application dated April 17, 2024, and so orders the issuance of witness summons to Harrison Mwendo or any other designated BFIU officer to testify in court in this suit on the hearing date and produce any other relevant documents.”.
