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ELRCDismissedNot stated in the judgment as provided· [2020] KEELRC 1510 (KLR)

Gerald Mwangi Gichohi v Paul Moipei & another [2020] KEELRC 1510 (KLR)

Employment and Labour Relations Court
6 March 2020
RSRadido Stephen
743 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 Kshs 3 million unfair termination claim because a union-negotiated separation agreement, paid at Kshs 72,000, was held binding.

What this practically means

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Executive summary

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The Claimant, employed by the Respondents as a Manager from 2008, claimed unlawful termination of employment and failure to pay terminal dues, seeking Kshs 2,996,400/-. He testified that after hospitalisation at Kenyatta National Hospital in August 2014 he was told his services were no longer required, and that circumstances forced him to accept a separation agreement negotiated through the Kenya Union of Domestic, Hotels, Educational Institutions and Hospital Workers, under which he was paid Kshs 72,000/- in full and final settlement. The 1st Respondent admitted employing the Claimant but stated the Claimant suffered a stroke, could no longer perform his obligations, and that mutual separation was agreed. The Court noted the Claimant had the benefit of a union representative during negotiations and that the union representative who negotiated and witnessed the agreement was not called to testify, with no explanation for the failure. It found the agreement voluntary and in full and final settlement, holding the case to be mutual separation rather than unfair termination. On the ancillary heads, the overtime claim of Kshs 1,728,000/- failed because the Claimant did not identify any applicable Regulation of Wages Order; house allowance was proved not to have been included in the wage; accrued leave relief was declined under section 28(4) of the Employment Act for want of evidence of approved carry-forward or denial of leave; and the NSSF claim failed for lack of Fund statements. The Cause was dismissed with no order on costs.

Key legal issues

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01

Unfair termination versus mutual separation

Holding

The separation was mutual, not an unfair termination

Reasoning

The Claimant suffered a stroke and could not perform his contractual obligations. His union negotiated with the Respondents and a mutual separation agreement was reached, pursuant to which he was paid Kshs 72,000/-. The agreement recorded full and final settlement. The Claimant had a union representative during negotiations, and the failure to call that representative to testify was unexplained. The Court therefore found the agreement voluntary and the separation mutual.

p. 2
02

Overtime

Holding

Overtime claim not proved

Reasoning

While the Employment Act leaves working hours to agreement between parties, Regulation of Wages Orders set minimum working hours for specific industries. The Claimant did not identify any specific Regulation of Wages Order applicable to his employment, so the head of claim failed for want of proof.

p. 2
03

House allowance

Holding

Claimant proved wage did not include house allowance

Reasoning

The Court recorded that the Claimant did prove that the agreed wage did not include house allowance, although the ultimate dismissal of the Cause meant no separate relief was granted on this head.

p. 2
04

Accrued leave days

Holding

Relief declined

Reasoning

Section 28(4) of the Employment Act limits carried-forward leave. The Claimant did not show approved carry-forward, denied leave applications, or that accrued leave was addressed in union negotiations. Relief was declined.

p. 2
05

NSSF contributions

Holding

Claim not proved

Reasoning

The Claimant produced no NSSF statements demonstrating that contributions of Kshs 38,400/- were not remitted to the Fund; the claim therefore failed.

p. 2

Legal principles established

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  • A separation agreement negotiated with the benefit of a union representative and described as full and final settlement will be treated as voluntary and binding

Court orders

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  1. 1.The Cause is dismissed
  2. 2.No order on costs

Authorities

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Legislation

  • Employment ActSection 28(4)
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes (Employment Act, 2007); specific provision not stated in the 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, "Gerald Mwangi Gichohi v Paul Moipei & another [2020] KEELRC 1510 (KLR)", Case Analysis (2020). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1510/eng@2020-03-06

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