Patrick Nyakundi v Kenya National Union of Teachers (KNUT Headquaters) & another [2017] KECA 200 (KLR)
The bottom line
#Kenya's Court of Appeal awarded a former KNUT employee nearly Kshs. 1 million in terminal dues, but held that accepting reduced salary voluntarily bars later claims for the difference.
What this practically means
#Executive summary
#Key legal issues
#Whether the appellant was declared redundant in 1998
The redundancy notice was revoked when the appellant signed the revised employment letter of 27th March 1998; the redundancy was averted and never took effect.
The court found the redundancy notice of 6th January 1998 specified a notice period expiring 31st March 1998, but before its expiry the parties negotiated and the appellant signed a letter revising his terms on 27th March 1998. The impending redundancy was thereby overtaken. The trial court's finding that the letter was deemed revoked was correct. Consequently no termination by redundancy occurred.
Whether the appellant entered into a new contract of employment
The appellant did not enter a new contract; he exercised the option to continue in employment under the existing contract on revised terms.
The letter of 27th March 1998 acknowledged the appellant's continued employment with the Union on a reduced salary. The court characterized it not as a fresh contract but as a revision of the existing contract's terms. The appellant's claim that he signed under duress failed for want of proof; the contract was revised voluntarily of his own free will.
Whether the claim was time barred under the Limitation of Actions Act
The suit, filed in 2006, was within the six-year limitation period because the cause of action arose on retirement on 31st December 2001, not on the averted 1998 redundancy.
The court held that limitation was not specifically pleaded in the respondents' defence as required by Order 2 rule 4 of the Civil Procedure Rules, but was raised only in submissions, and was an afterthought since the respondents' case was that no redundancy occurred. In any event, since the appellant remained in continuous employment until retirement on 31st December 2001, only five years had elapsed when suit was filed in 2006.
Whether the appellant was entitled to the various heads of claim
The appellant was awarded unpaid leave for 1993-1996, unpaid salary for January-March 1998, salary arrears, five months' salary in lieu of short retirement notice, unpaid service gratuity and staff terminal benefits, but his claims for underpayment and headquarters gratuity failed.
Claims uncontroverted by evidence from the respondents succeeded: the leave claim, unpaid salaries, and salary increments under the circular. The retirement notice of one month contravened the circular requiring six months' notice, entitling the appellant to five months' salary in lieu. Service gratuity was awarded on the appellant's unrebutted computation. Headquarters gratuity and underpayment failed for lack of evidential basis and estoppel respectively.
Legal principles established
#- A first appellate court must re-evaluate the evidence and draw its own conclusions, while making allowance for the fact that it did not see or hear the witnesses
- Statutory limitation must be specifically pleaded in a defence or reply to counterclaim; a court cannot act on an unpleaded limitation defence
- In the absence of fraud, duress, undue influence or mistake, courts will enforce a bargain freely entered into even if one-sided or harsh
Court orders
#- 1.The 1st respondent to pay the appellant a total sum of Kshs. 985,626.91, being unpaid salary for January, February and March 1998 (Kshs. 27,167/-), unpaid leave for 1993-1996 (Kshs. 285,487.86), salary arrears January–March 1998 (Kshs. 104,552.85), unpaid service gratuity (Kshs. 271,879.20), five months salary in lieu of retirement notice (Kshs. 134,795/-), and unpaid staff terminal benefits (Kshs. 161,745/-)
- 2.Each party to bear their own costs both in the Industrial Court and in this Court
- On appeal from
- Industrial Court of Kenya at Nairobi
- Industrial Cause No. 1902 of 2011
- Jurisdiction invoked
- First appeal to the Court of Appeal from the Industrial Court (now Employment and Labour Relations Court)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Aron v Bokhol Transporters Limited (Appeal E185 of 2024) [2025] KEELRC 805 (KLR)[2025] KEELRC 805 (KLR)13 Mar 2025
- Consolidated Bank of Kenya Ltd v Monica Wangari Ndungu & 5 others [2021] KEELC 3498 (KLR)[2021] KEELC 3498 (KLR)5 May 2021followed
Cite this brief
#Cite this brief
Caselaw, "Patrick Nyakundi v Kenya National Union of Teachers (KNUT Headquaters) & another [2017] KECA 200 (KLR)", Case Analysis (2017). Civil Appeal No. 252 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/200/eng@2017-11-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.