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ELRCDismissedNot stated in judgment· [2019] KEELRC 2311 (KLR)

Francis Kangethe Muchiri v Diocese of Meru Trustees (Registered) t/a St. Theresa Mission Hospital Kiirua [2019] KEELRC 2311 (KLR)

Employment and Labour Relations Court
5 February 2019
898 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 dismissed a security guard's unfair termination claim because he had signed an agreement accepting his final dues and waiving any further claims.

What this practically means

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Executive summary

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The Claimant, a security guard employed by the Respondent from 1st July 2015 at a monthly wage of Kshs. 12,705, sued over the termination of his employment on 13th December 2017 on grounds of redundancy effective 13th January 2018. He sought a declaration that the termination was unlawful and unfair, general damages, costs and interest, contending he was dismissed without cause and without a notice to show cause. The Respondent defended the suit on the basis that the termination was a lawful redundancy following its board's decision to outsource security services, that one month's notice was given, that the Claimant was paid all his dues, and that he signed a final dues agreement. In evidence, the Claimant admitted in cross-examination that his contract permitted termination on one month's notice or payment in lieu, and that the letter gave the reason for the redundancy. The Respondent's HR manager, Janet Kitui, testified that the Labour Officer was notified, though the notice was not addressed to the Claimant; in re-examination she stated the letter of 13th December 2017 was to the Claimant and copied to the Labour Officer. The Claimant relied on Felister Nduku Nzaku v Florence Wairimu Gitau [2018] eKLR, arguing non-compliance with Section 40 of the Employment Act. The Respondent countered that the Claimant was bound by his pleading of summary dismissal. The court held that the Respondent duly notified both the Claimant and the Labour Officer in line with Section 40(b) and paid the dues. Central to the dismissal was the discharge the Claimant signed, by which he acknowledged having no further claim against the institution. The court held he was bound by his pleadings, his contract and his waiver, and could not resile from the bargain. The suit was dismissed with each party bearing their own costs. Dated and delivered at Meru on 5th February 2019 by Nzioki wa Makau, Judge.

Key legal issues

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01

Compliance with Section 40 of the Employment Act in redundancy

Holding

The Respondent complied with Section 40 by notifying both the Claimant and the Labour Officer and paying the dues

Reasoning

The court found that the decision to outsource security services was made by the Respondent's board and communicated to the Claimant and the Labour Officer. Although the notice to the Labour Officer was not addressed to the Claimant, the HR manager testified in re-examination that the letter of 13th December 2017 was to the Claimant and copied to the Labour Officer. The court held notification under Section 40(b) was duly done, and dues were paid.

p. 2
02

Effect of the final dues agreement signed by the Claimant

Holding

The discharge was a binding contract and waiver that defeated the claim

Reasoning

The Claimant signed an agreement acknowledging he would not demand further payment and had no further claim against the institution. He did not indicate any reservations in the agreement, his pleadings, or his testimony. The court held he was bound by his pleadings, his contract and his waiver, making the suit unmerited notwithstanding any procedural questions on the redundancy notice.

p. 2
03

Whether the Claimant could shift his case from summary dismissal to lack of redundancy notice

Holding

The Respondent argued he could not, but the court addressed the redundancy notice question on the merits

Reasoning

The Respondent submitted the Claimant was bound by his pleading of summary dismissal and was belatedly mutating his claim. The court nonetheless framed the case as one that 'turns on the question as to whether there was a proper notice for the redundancy', finding the Respondent had notified both the Claimant and the Labour Officer and paid dues.

p. 1

Legal principles established

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  • An employee who signs a final dues discharge agreement without reservation is bound by it and cannot resile from it to bring a claim for unfair termination
  • Under Section 40(1)(b) of the Employment Act, an employer terminating on redundancy must notify the employee personally in writing and the labour officer

Court orders

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  1. 1.The suit is dismissed
  2. 2.Each party will bear their own costs

Authorities

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Legislation

  • Employment ActSection 40(1), particularly 40(1)(b) and 40(1)(f)

Cases cited (1)

  • Felister Nduku Nzaku v Florence Wairimu Gitau
    [2018] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes (statute not expressly cited in judgment)

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, "Francis Kangethe Muchiri v Diocese of Meru Trustees (Registered) t/a St. Theresa Mission Hospital Kiirua [2019] KEELRC 2311 (KLR)", Case Analysis (2019). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/2311/eng@2019-02-05

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