Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCPartially AllowedStatement of Claim filed 20th August 2018 (ELRC)· [2020] KEELRC 426 (KLR)

Vincent Kebari v Stephen Gikera & Punit Vadgama t/a Gikera & Vadgama Advocates [2020] KEELRC 426 (KLR)

Employment and Labour Relations Court
29 September 2020
3,613 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

#

A Kenyan court ruled an advocate's termination unfair because no reason was given, awarding him 5½ months' salary despite his signed discharge voucher.

What this practically means

#

Executive summary

#
The Claimant, an Advocate, was employed by the Respondent law firm as a Litigation Advocate in Mombasa from 16th March 2017 on a net monthly salary of Kshs. 150,000 (gross Kshs. 207,377). He was confirmed after probation in July 2017 with good appraisals. On 26th January 2018, while attending a seminar, he received a 30-day notice of termination by email, with no reason given beyond Clause 9.2 of the Human Resource Manual and Section 35(1)(c) of the Employment Act. He signed a discharge voucher on 9th March 2018 acknowledging receipt of all terminal dues, paid as Kshs. 184,539 net. He claimed unpaid bonus, unspent leave, house allowance, wrongful salary deductions, practicing certificate fees, damages for discrimination, remission of statutory deductions and compensation for wrongful dismissal. The Court held that the discharge voucher barred further terminal dues claims, that deductions were lawful (relating to welfare and agreed training costs), that bonus was discretionary with no contractual basis, and that discrimination was not established since the comparators were non-Advocate support staff. However, the Court found termination unfair: Section 35(1)(c) is not a standalone provision and must be read with Sections 43 and 45 requiring valid reasons; Clause 9.1 of the Manual required investigation before terminating capable staff, and none occurred. The Court declared the termination unfair and awarded compensation equivalent to 5½ months' gross salary at Kshs. 1,140,573, together with costs and a Certificate of Service.

Key legal issues

#
01

Whether termination without reasons, resting only on Section 35(1)(c) and Clause 9.2 of the Human Resource Manual, was fair

Holding

Termination was unfair; Section 35(1)(c) must be read with Sections 43 and 45, and Clause 9.1 of the Manual required investigation before terminating a capable employee, which was not done

Reasoning

The Respondent invoked only the notice provision and Clause 9.2, giving no reason for termination. Section 43 requires valid reasons and Section 45 fair procedure; the Employment Act was enacted to remove termination at will. Clause 9.1 of the Respondent's own Manual required investigation of capable staff before termination, and no investigation took place. The Claimant's appraisals were good and he had no disciplinary issues.

p. 4
02

Whether the discharge voucher barred the claims for terminal dues

Holding

Yes; having voluntarily acknowledged receipt of all terminal dues, the Claimant could not later claim further amounts, and the deductions were in any event lawful

Reasoning

The Claimant, a lawyer, signed a discharge voucher acknowledging all terminal dues including notice pay and 7 days' leave. Claims for bonus, leave and house allowance ought to have been made before discharge. The deductions related to welfare and agreed mediation training costs and were lawful.

p. 3
03

Whether the Claimant was discriminated against

Holding

No discrimination established; the comparators were non-Advocate support staff who left through redundancy, a different route

Reasoning

The named comparators were support staff, not fellow Advocates. Logging the Claimant off the email system during notice was a standard security precaution. Those who left on redundancy were treated under a different mode of exit. No evidence of differential treatment of his Advocate peers.

p. 4

Legal principles established

#
  • Section 35(1)(c) of the Employment Act is not a standalone provision authorising termination at will; it must be read with Sections 43 and 45 requiring valid reasons and fair procedure
  • Contractual or manual standards more advantageous to the employee than the Employment Act must be upheld
  • A voluntary discharge voucher acknowledging receipt of all terminal dues bars subsequent claims for terminal benefits

Court orders

#
  1. 1.It is declared that termination of the Claimant's contract was unfair
  2. 2.The Respondent shall pay to the Claimant compensation for unfair termination, equivalent of 5 ½ months' gross salary at Kshs. 1,140,573
  3. 3.The Respondent shall pay the costs of the Claim
  4. 4.Certificate of Service to issue

Authorities

#

Legislation

  • Employment ActSection 35(1)(c)
  • Employment ActSection 43
  • Employment ActSection 45
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment and labour relations disputes (Employment Act 2007)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Vincent Kebari v Stephen Gikera & Punit Vadgama t/a Gikera & Vadgama Advocates [2020] KEELRC 426 (KLR)", Case Analysis (2020). Statement of Claim filed 20th August 2018 (ELRC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/426/eng@2020-09-29

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