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ELRCDismissedCause No 589 of 2015· [2020] KEELRC 1135 (KLR)

Beatrice Kananu Imathiu v British American Tobacco (K) Ltd [2020] KEELRC 1135 (KLR)

Employment and Labour Relations Court of Kenya at Nairobi
6 May 2020
ANAbuodha Jorum Nelson
2,261 words in judgment
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The bottom line

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Kenya's Employment Court dismissed an unfair termination claim because the employee accepted Kshs 11.8 million in mutual separation dues and could not reject the agreement afterwards.

What this practically means

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Executive summary

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The claimant, formerly Area Head of Reward East and Central Africa at British American Tobacco (K) Ltd, sued for unfair termination, withheld bonus and salary review from 2012, alleging her exit was pre-determined, that she was pressured to resign, and that she was discriminated against on grounds of gender and maternity leave. The respondent contended that her role was consolidated into a global shared-services model, that she requested and accepted a mutual separation on redundancy-equivalent terms, and that she received Kshs 11,826,000/= in terminal dues after acknowledging and praising the figures. The court held that the burden of proving unfair termination lay on the claimant. Her conduct - accepting the computation, thanking the respondent, and receiving the payment while seeking to repudiate the mutual separation agreement - amounted to impermissible approbation and reprobation. The evidence on appraisal showed a 'requires improvement' rating which under company policy attracted no increment but a reduced bonus, undercutting the discrimination claim. The court concluded that the claimant failed to prove unfair termination warranting the orders sought, and dismissed the claim. Considering her years and level of service, the court declined to award costs, directing that each party bear its own position effectively through 'no order as to costs'. Judgment delivered at Nairobi on 6th May 2020 by Abuodha Jorum Nelson, Judge.

Key legal issues

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01

Whether termination was unfair

Holding

The claim failed; the claimant did not prove unfair termination as the separation was mutual and she accepted the benefits under it.

Reasoning

The court held the burden lay on the employee to prove unfair termination. The claimant accepted the computation of dues, received Kshs 11,826,000/=, and thanked the respondent, evidencing acceptance of a mutual separation. Her attempt to retain the money while repudiating the agreement was inequitable conduct the court would not support.

p. 3
02

Approbation and reprobation

Holding

The claimant could not accept the separation dues while denying the existence or binding nature of the mutual separation agreement.

Reasoning

The court applied the equitable doctrine that no party may pick and choose only favourable aspects of a transaction. The claimant's excitement at the figures and her acceptance of payment were inconsistent with her later claim of unfair termination, so her conduct was inequitable and could not found a claim.

p. 3
03

Alleged discrimination in salary review and bonus

Holding

Not upheld; the claimant's rating of 'requires improvement' explained the denial of salary increment and the 50% bonus.

Reasoning

The evidence showed the claimant was appraised in 2012 with a rating of 'requires improvement', which under the respondent's policy did not attract a salary increment though a reduced bonus was still payable. The claimant, who helped design the reward policies, did not appeal the appraisal, undermining the discrimination claim.

p. 2

Legal principles established

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  • In a claim for unfair termination, the burden of proving unfair termination is cast upon the employee.
  • A party cannot approbate and reprobate - one cannot accept the benefits of a transaction while rejecting its burdens.

Court orders

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  1. 1.The claim is hereby dismissed with no order as to costs considering the years and level of service the claimant rendered to the respondent.

Authorities

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Legislation

  • Employment Actunfair termination provisions (implied)
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act and the Labour Relations Act (first-instance employment cause)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Beatrice Kananu Imathiu v British American Tobacco (K) Ltd [2020] KEELRC 1135 (KLR)", Case Analysis (2020). Cause No 589 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1135/eng@2020-05-06

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