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ELRCDismissedNot stated in the judgment· [2019] KEELRC 448 (KLR)

Patrick Gichobi Gakombe v H. Young & Company Limited [2019] KEELRC 448 (KLR)

Employment and Labour Relations Court
1 November 2019
568 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court threw out a driver's unfair dismissal claim because he had accepted the terms of his termination letter, though the employer must still issue a certificate of service.

What this practically means

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Executive summary

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The claimant, employed by the respondent as a personal driver for about 8.5 years at a monthly salary (net) of Kshs.32,788.00, sued by a memorandum of claim filed on 29.07.2016 seeking a declaration that his sacking on 07.11.2015 was illegal and unlawful, and payment of Kshs.896,266.53 comprising unpaid salary, two months' salary in lieu of notice, service pay, leave pay and general damages for wrongful dismissal, plus costs and interest. The respondent admitted the employment and the termination but maintained that the dismissal was above board and asked for dismissal of the suit with costs. The respondent did not attend the hearing or call a witness. The claimant testified that the letter of termination dated 07.11.2015 set out his gross terminal dues at Kshs.206,877.00 (net Kshs.38,740.00) and that he accepted its terms, later differing only on the final dues. The court held that because the claimant accepted the terms of the termination letter, allegations of unfair termination were unfounded and those prayers collapsed. On service pay, the court held that the claimant, being an NSSF member, was not entitled to service pay under section 35 of the Employment Act, 2007. The court found that terminal dues had been paid per the collective agreement and the termination letter, and that the claimant had failed to prove otherwise. Judgment was entered for the respondent dismissing the suit, with each party bearing own costs; however, the respondent was ordered to deliver a certificate of service under section 51 of the Employment Act.

Key legal issues

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01

Unfair termination

Holding

The claim of unfair termination failed because the claimant accepted the terms of the letter of termination

Reasoning

The claimant testified that he accepted the terms of the letter of termination dated 07.11.2015, which set out the final dues payable. Having accepted those terms, his subsequent disagreement with the respondent over the final dues could not convert the termination into an unfair or unlawful dismissal, and the prayers founded on wrongful dismissal collapsed.

p. 2
02

Service pay

Holding

The claimant, being an NSSF member, was not entitled to service pay

Reasoning

Section 35 of the Employment Act, 2007 governs entitlement to service pay. As the claimant was a member of NSSF, he did not qualify for service pay for the years served, and that head of claim failed.

p. 2
03

Terminal dues

Holding

The claimant failed to prove that the respondent owed him any terminal dues

Reasoning

The material on record showed that the respondent paid the terminal dues as per the collective agreement and the terms of the letter of termination. The claimant, who bore the burden of proof, did not give evidence demonstrating that any terminal dues remained outstanding, so his case failed on this head.

p. 2
04

Certificate of service

Holding

The respondent was ordered to deliver a certificate of service under section 51 of the Employment Act

Reasoning

Notwithstanding the dismissal of the suit, the court exercised its powers under section 51 of the Employment Act to order the respondent to issue the claimant with a certificate of service, an entitlement that survives the failure of the broader claims.

p. 2

Legal principles established

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  • An employee who accepts the terms of a letter of termination cannot thereafter allege unfair termination
  • A member of NSSF is not entitled to service pay under section 35 of the Employment Act, 2007
  • An employer must deliver a certificate of service to an employee under section 51 of the Employment Act

Court orders

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  1. 1.Judgment entered for the respondent against the claimant for dismissal of the suit
  2. 2.Each party to bear own costs of the suit
  3. 3.The respondent to deliver a certificate of service to the claimant per section 51 of the Employment Act

Authorities

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Legislation

  • Employment Act, 2007section 35
  • Employment Act, 2007section 51
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (first-instance employment claim)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Patrick Gichobi Gakombe v H. Young & Company Limited [2019] KEELRC 448 (KLR)", Case Analysis (2019). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/448/eng@2019-11-01

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