Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCPartially AllowedCause No. 170 of 2016· [2018] KEELRC 90 (KLR)

Dennis Kipngetich Koech v MKPPA Kenya Limited [2018] KEELRC 90 (KLR)

Employment and Labour Relations Court of Kenya
18 December 2018
MMM. Mbaru
3,160 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

#

Kenya's Employment Court ruled that signing a 'final dues' settlement does not stop an employee from challenging an unfair dismissal in court.

What this practically means

#

Executive summary

#
The claimant, employed by the respondent from 2013 under successive fixed term contracts and last serving as Junior Service Centre Manager on a gross salary of Ksh.40,000.00, was terminated on 7th March 2016 for poor performance while on a performance improvement plan (PIP). He claimed notice pay, house allowance, three years' leave pay, pay for days worked, unexpired contract term pay for two contracts, compensation and a certificate of service. The respondent relied on a Declaration of Final Dues signed on 3rd May 2016, asserting it discharged all claims, and that termination was for valid grounds under section 47(5) of the Employment Act with notice pay made. The court held that a discharge clause cannot bar claims grounded in the Constitution and statute: Article 41(1) guarantees fair labour practices and section 35(4) of the Employment Act preserves the right to dispute termination, so the declaration was null and void to the extent of conflict. On the merits, the PIP was applied without support measures or the required assessment; the show cause notice issued only after termination was an afterthought. Termination was substantively and procedurally unfair. Notice pay, pro-rated leave, days worked and the certificate of service were already paid. House allowance and three years' leave pay were refused as the contract stipulated a gross salary and leave had been paid. The unexpired term of the final contract was awarded as compensation under section 49, assessed at six months. Judgment was entered for the claimant for Ksh.320,000.00 with costs of the suit.

Key legal issues

#
01

Effect of the Declaration of Final Dues on further claims

Holding

The declaration did not bar the claimant's claims; discharge clauses cannot override constitutional and statutory protections

Reasoning

Article 41(1) of the Constitution grants everyone the right to fair labour practices, requiring purposive interpretation. Section 35(4) of the Employment Act preserves the employee's right to dispute the lawfulness or fairness of termination. Where dues paid are legal entitlements, a discharge provision cannot surpass constitutional and statutory protection and is null and void to the extent of conflict.

p. 3
02

Whether termination for poor performance was substantively and procedurally fair

Holding

The termination was unfair both in substance and procedure

Reasoning

Under sections 41 and 45(2) of the Employment Act, termination for poor performance requires explanation, a chance to be heard, and fair procedure. The PIP was applied without support measures and without the required assessment; supervisors failed to meet and evaluate the claimant. The show cause notice issued after termination was an afterthought. Termination therefore lacked validity and fair procedure.

p. 4
03

Remedies payable

Holding

Notice pay, pro-rated leave, pay for days worked and certificate of service were already paid; compensation for the unexpired term assessed at 6 months' salary under section 49; house allowance and 3 years' leave pay refused

Reasoning

The claimant was under continuous fixed term contracts with gross salary of Ksh.40,000.00, so no separate house allowance was claimable. Leave had been paid. For the unfairly terminated final contract ending 1st August 2016, the court awarded the unexpired term as compensation under section 49, assessed at six months.

p. 5

Legal principles established

#
  • A discharge or final dues declaration cannot bar claims grounded in the Constitution and the law; it is null and void to the extent it conflicts with constitutional protections
  • Poor performance dismissals require distinct procedure from misconduct: the employee must be informed, supported, assessed and given a chance to improve

Court orders

#
  1. 1.Judgment entered for the claimant against the respondent with the award of Ksh.320,000.00
  2. 2.Costs of the suit awarded to the claimant

Authorities

#

Legislation

  • Constitution of Kenya, 2010Article 41(1)
  • Employment Act, 2007Section 35 (including 35(1) and 35(4))
  • Employment Act, 2007Section 41
  • Employment Act, 2007Section 45(2)
  • Employment Act, 2007Section 47(5)
  • Employment Act, 2007Section 49
  • Employment Act, 2007Section 28

Cases cited (7)

  • Coastal Bottlers Limited versus Kimathi Mithika
    [2018] eKLR
  • Gilbert Mugambi versus Michimikuru Factory Limited Cause No.20 of 2017 (Meru)
  • Pius Machafuli Isindu versus Lavington Security Guards Limited
    [2017] eKLR
  • Elizabeth Washeke & others versus Airtel Networks & Others
    [2013] eKLR
  • Simelela and Others versus MEC for Education, Province of the Eastern Cape and Others
    (2001) 22 ILJ 1688(LC)
  • Kenya Science Research International Technical and Allied Workers Union (KSRITAWU) versus Stanley Kinyanjui and Magnate Ventures (Cause No 273 of 2010)
  • David Masha Maitha versus ARM Cement
    [2018] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 and Article 41 of the Constitution

Key timeline

#

Practical implications

#

Frequently asked questions

#

Later judgments citing this (6)

#

Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

#

Cite this brief

Caselaw, "Dennis Kipngetich Koech v MKPPA Kenya Limited [2018] KEELRC 90 (KLR)", Case Analysis (2018). Cause No. 170 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/90/eng@2018-12-18

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.