Robert Williamson v Football Kenya Federation (Sued through Its President Nick Mwendwa and Its Secretary General and C.E.O Robert Muthomi) [2019] KEELRC 605 (KLR)
The bottom line
#Kenya's Employment Court ordered Football Kenya Federation to pay its former Harambee Stars coach Kshs. 55.9 million because its own letters acknowledged the debt.
What this practically means
#Executive summary
#Key legal issues
#Existence of a contract of service between the claimant and the respondent
The claimant was employed by the respondent as Head Coach of Harambee Stars on the terms alleged, with the Government paying remuneration under an arrangement the claimant was not privy to
The respondent failed to keep employment records as required by sections 10(6) and (7) of the Employment Act, shifting the burden to it. The respondent's President's letter of 09.02.2016 to the Principal Secretary and the General Secretary/CEO's letter of 28.11.2016 acknowledged the employment relationship and the sums owed, confirming the claimant's account despite the contested versions of the contract.
Quantum of the respondent's liability
The respondent is bound by its acknowledgment of Kshs. 55,900,000.00 as pleaded in the demand letter dated 27.11.2016 (salary arrears, house rent arrears, and terminal dues of Kshs. 10,000,000)
The acknowledgment letter of 28.11.2016 by the General Secretary/CEO, read together with the advocate's demand letter, constituted agreed terms of separation binding the parties. The letters were not made on a without-prejudice basis, so the acknowledged sum was enforceable without resolving the validity of the competing contract versions.
Arbitration clause and jurisdiction
The Court had jurisdiction; the parties waived the arbitration clause and the respondent was estopped from invoking it after denying the contract
No reference to arbitration was ever made nor any application filed before the Court, so the parties were deemed to have waived clause 11. Further, the respondent denied the very contract containing the arbitration clause, and a party cannot approbate and reprobate. Jurisdiction arose under Article 162(2) of the Constitution and section 12 of the ELRC Act.
Compensation for unfair termination
The claimant was not entitled to additional compensation for unfair termination
The contract clause 5.7(iv) provided for Kshs. 10,000,000 if the Federation terminated the coach's services, which sum was already included in the acknowledged separation package. Having been compensated per the agreed separation terms, the claimant could not claim compensation for the residue of the term or other heads.
Legal principles established
#- Under sections 10(6) and (7) of the Employment Act, 2007, the employer bears the duty to keep employment records and failing that, the burden of proving or disproving alleged terms of employment
- A party who denies the existence of a contract is estopped from relying on an arbitration clause in that same contract to defeat a claim (approbate and reprobate)
- A demand letter and an acknowledgment of the debt, not made on a without-prejudice basis, constitute binding agreed terms of separation
Court orders
#- 1.Judgment entered for the claimant against the respondent for Kshs. 55,900,000.00 payable by 01.12.2019, failing which interest to run at Court rates from the date of judgment till full payment
- 2.The respondent to pay costs of the suit
- Jurisdiction invoked
- Article 162(2) of the Constitution of Kenya, 2010 as read with section 12 of the Employment and Labour Relations Court Act, 2011
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Robert Williamson v Football Kenya Federation (Sued through Its President Nick Mwendwa and Its Secretary General and C.E.O Robert Muthomi) [2019] KEELRC 605 (KLR)", Case Analysis (2019). ELRC Cause (statement of claim filed 09.10.2017; number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/605/eng@2019-10-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.