Joseph Mungai Keriko v Kirinyaga University College [2018] KEELRC 633 (KLR)

The Court found that both parties, fully aware of the disciplinary findings and allegations against the claimant, evaluated their positions and agreed to separate through the claimant's resignation and its acceptance. Applying the 'soft landing' principle in Malachi Ochieng Pire, parties who opt to separate by resignation agreement surrender their strict positions and are bound by that agreement without further rights or obligations. No factor diminishing the claimant's free will was established.

Under section 12(3) of the ELRC Act, three years had elapsed since the resignation, barring reinstatement. The respondent had been chartered as a fully fledged university, abolishing the Principal's position, following Professor Elijah Biama. Regarding the unexpired term, the separation agreement contained no provision for such payment, and the claimant had resumed employment as a Professor of Chemistry at JKUAT, following Ronald Sigey and Cyprian Kinoti M'muriungi.

The claimant was found entitled to salary of Kshs. 252,892.65 up to 2 May 2013, gratuity of Kshs. 454,004.00 for the period served per the contract, refund of Kshs. 389,703.00 transferred to the respondent, Kshs. 54,675.00 medical claim not specifically disputed, and Kshs. 240,000.00 unpaid council allowances supported by a circular. These were specific dues under the contract or undisputed claims, distinct from the refused claims for the unexpired term.

The claimant admitted in evidence the Council meeting allowance was irregularly paid; the mileage claim was found outside the terms of service; and the pension contributions were payable as gratuity not pension. Conversely, the tax claim was unexplained, the amounts paid to recruited staff were not shown recoverable from the claimant alone (other signatories were not disciplined), the resignation agreement superseded notice pay, and project payments were recoverable from contractors.