Patrick Gichobi Gakombe v H. Young & Company Limited [2019] KEELRC 448 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Unfair termination
The claim of unfair termination failed because the claimant accepted the terms of the letter of termination
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.
Service pay
The claimant, being an NSSF member, was not entitled to service pay
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.
Terminal dues
The claimant failed to prove that the respondent owed him any terminal dues
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.
Certificate of service
The respondent was ordered to deliver a certificate of service under section 51 of the Employment Act
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.
Legal principles established
#- 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
#- 1.Judgment entered for the respondent against the claimant for dismissal of the suit
- 2.Each party to bear own costs of the suit
- 3.The respondent to deliver a certificate of service to the claimant per section 51 of the Employment Act
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (first-instance employment claim)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.