PETER GICHANA MWAMBA v M/S EASY COACH LTD [2012] KEELRC 189 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Effect of the discharge voucher dated 5th March 2012
There was no effective discharge voucher; the alleged discharge did not state the amount received and lacked express and unambiguous consideration
The Claimant testified he was forced to sign the letter and the Respondent led no evidence to rebut this. The pay slip showed net entitlement of Kshs.133,708 plus February 2012 salary of Kshs.30,608 totalling Kshs.164,316, matching the voucher figure, but the Claimant said he received only one cheque of Kshs.105,000 for service pay. The voucher did not show the money actually received, so it lacked express and unambiguous consideration and was not effectual.
Fairness of the termination
The termination was unfair because the Respondent did not comply with Section 41 of the Employment Act, 2007
The Respondent alleged poor performance as the reason for termination. Section 41 required the Respondent to explain the reason for termination to the Claimant in a language he understood and to allow him another employee's presence during the explanation. The Respondent did not comply with these statutory provisions, so the termination was unfair.
Notice pay under Section 35(1)(c)
Claimant entitled to at least 28 days' notice; awarded three months' salary (Kshs.105,000) in lieu of notice
Section 35(1)(c) of the Employment Act entitled the Claimant to at least 28 days' notice, which was not served. As the parties had not agreed on a notice period and the Respondent had terminated on account of alleged retirement, the Court considered three months' salary in lieu of notice reasonable, awarding Kshs.105,000 at Kshs.35,000 per month.
Compensation for unfair termination
Awarded twelve months' gross salary, Kshs.600,000
Having found the termination unfair, the Court exercised its remedial powers to award the equivalent of twelve months' gross salary, computed on the monthly gross income of Kshs.50,000, as compensation for the unfair termination.
Legal principles established
#- A discharge voucher must show express and unambiguous consideration to be binding and effectual
- Termination on account of poor performance must comply with Section 41 of the Employment Act, 2007, including an explanation of the reason and the employee's right to have another employee present
- Unrebutted evidence of duress in signing a discharge voucher, coupled with absence of contrary evidence from the employer, is accepted by the court
Court orders
#- 1.Declaration that the Claimant's termination of employment by the Respondent was unfair
- 2.Respondent to pay the Claimant Kshs.705,000/= plus interest at Court rates until full and final payment
- 3.Respondent to pay costs of the cause
- Jurisdiction invoked
- Employment Act, 2007 (first-instance employment cause under the Employment and Labour Relations Court's jurisdiction)
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.
- Eboyi v Kashangaki (Cause 451 of 2014) [2018] KEELRC 2605 (KLR)[2018] KEELRC 2605 (KLR)17 Dec 2018
- Eboyi v Kashangaki (Cause 451 of 2014) [2018] KEELRC 2605 (KLR)[2018] KEELRC 2605 (KLR)17 Dec 2018
Cite this brief
#Cite this brief
Caselaw, "PETER GICHANA MWAMBA v M/S EASY COACH LTD [2012] KEELRC 189 (KLR)", Case Analysis (2012). Cause No 638 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2012/189/eng@2012-11-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.