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Companies — those artificial persons devoid of a heart to love or trust — don’t usually take chances. Not even with an employee or customer with whom they have had a long-running relationship.

However, a recent court ruling against African Bank Corporation (ABC) Limited shows that there are times when this guard might be inadvertently dropped. And for ABC, this complacency might have cost it Sh35.9 million.

The money went missing in less than three years. And for that, Boniface Wainaina Kabeu, an employee, is facing charges.

Court documents — in a case in which ABC wanted the court to squeeze out compensation from Saham Assurance for this alleged fraud — show how Wainaina charmed his way through the ranks at ABC, who ignored the warning signs and welcomed him back after he had been summarily dismissed by Equity Bank for suspicion of being involved in theft.

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However, High Court Judge Mary Kasango declined to grant them their prayers.

“ABC by its submissions attempted, in error in my view, to state that it was entitled to take into account that Wainaina worked for it for six years before resigning and joining Equity Bank, and that accordingly there was no requirement to obtain satisfactory reference of Wainaina since the policy of insurance only required such reference for employees who had not been working for ABC three years from the commencement of the policy of insurance,” said Justice Kasango, while dismissing ABC’s case with costs in a judgement that was handed virtually on July 28.

Brainy student

“ABC witness confirmed that Wainaina was employed from the university campus and was to be trained and to ultimately be management level,” reads a court document.

He joined the bank on May 15, 2003 and worked for six years until he tendered his resignation on January 9, 2009.

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Wainaina seems to have been poached by Equity Bank, because the day he resigned is the same day he started working as a Treasury officer at Equity.

He worked at Equity for less than a year and when he wanted to resign while he was being investigated for an entry “error” he made, he was fired.

He then went back to ABC in September 2009 seeking to be re-employed. ABC wrote to Equity Bank seeking confidential reference on Boniface.

In the letter, they also attached a questionnaire which they asked Equity to fill in as part of the background check on Wainaina.

It is not clear whether in its response, some 15 months later, Equity attached a filled-in questionnaire, but Wainaina was offered a three-month contract of employment by ABC.

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That contract, noted the court papers, was extended from time to time until May 30, 2012 when his contract was for an indefinite period.

Between May 20, 2012 and May 19, 2013, ABC was insured by Saham, having taken out a Blanket Insurance Policy, which covered a lot of risks, including employee infidelity.

But there was a rider to this policy. ABC was required to comprehensively do a background check on their employees from at least two previous employers and other reputable references in case of first time employment, covering the previous three years.

Pending case

From April 4, 2012 to August 20, 2014, Wainaina and an accomplice, Peter Nyamberi Nyaboga, who had a bank account at ABC Koinange Street branch, allegedly defrauded the lender of some Sh35.9 million.

John David Miners, the managing director of Cunningham Lindsey Kenya Limited, the insurance loss adjustors hired by Saham to evaluate the case, told the court of how the fraud had been perpetrated.

“He confirmed that Wainaina and his accomplice were arrested and were charged with criminal offence,” said Judge Kasango.

The judge was particularly concerned with how ABC allowed Boniface to work in “an area where he had access to money transactions” when he (Wainaina) himself had admitted to having a case pending before a criminal court “which related to financial loss that Equity Bank, his former employer, suffered in a transaction he undertook while in that bank’s employment.”

ABC said it relied on the fact that it cleared Wainaina on the basis that he had received a Certificate of Good Conduct from the Directorate of Criminal Investigations (DCI).

Good conduct

However, the court noted that because an accused person is presumed innocent until proven guilty, the Certificate of Good Conduct could not reflect the case that Wainaina faced.

“ABC did not, in as far as its evidence before court is concerned, make inquiry to confirm whether indeed Wainaina was facing a criminal case and even up to 2014 when the fraud in its bank was discovered there seemed to have been no attempt to follow up and make inquiry about that case,” she ruled.

The court also noted that ABC made no mention of the questionnaire it had sent to Equity as part of seeking the background check on the character of Wainaina.

“It is thus not clear whether it was filled in by Equity Bank “and if so why it was not provided to the court.”

“Was it not produced because it would have been damning to ABC claim against Saham?” the court asked

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