Daniel Mwanyasi Mwalwala v Barclays Bank of Kenya Limited [2021] KEELRC 1069 (KLR)
The bottom line
#Kenya's Employment Court ruled that an employee who voluntarily accepts a voluntary exit scheme cannot later claim unfair termination or discrimination without strong proof.
What this practically means
#Executive summary
#Key legal issues
#Whether the Petitioner was coerced to apply for the VES
No coercion found; the Petitioner was given time to decide and voluntarily applied for and accepted the VES
The Petitioner was offered two options - a disciplinary process or the VES - and given time off duty to decide. He applied by email and filled the VES form, then accepted the offer and received the exit package. He had previously exercised the appeal procedure and knew its steps, so no threat vitiated his consent. The court followed the doctrine of freedom of contract and the principle that affirmation binds a party.
Whether the Petitioner was discriminated against on account of his medical condition
No discrimination substantiated
The Line Manager's email criticised lateness without reference to illness; the Petitioner's medical report required no special arrangements and he enjoyed flexible working hours even after they were withdrawn from others. The performance report did not refer to his illness. The court found no differential treatment contrary to Article 27(4) of the Constitution and section 5 of the Employment Act.
Whether the Petitioner is entitled to the reliefs sought
Reliefs refused
Having found no coercion or discrimination, compensation and damages claims failed. The loan-rate prayer failed because the VES contract provided staff rates for only 12 months and the court cannot rewrite the parties' contract. The car allowance claim was not pleaded.
Whether the Cross-Petition should be allowed
Cross-Petition failed as overtaken by events
The Cross-Petition sought refund of the VES payment only in the event of rescission of the VES contract. Since the Petition was dismissed and no rescission occurred, the Cross-Petition fell away.
Legal principles established
#- Where an employee voluntarily applies for and accepts a VES with the option to decline, the resulting contract is binding and the court will not interfere absent vitiating factors
- A party alleging discrimination must demonstrate that he was treated differently from others on the prohibited ground
Court orders
#- 1.The Petition is dismissed for want of merit
- 2.The Cross-Petition is overtaken by events and fails
- 3.Each party should bear its own costs of both the Petition and the Cross-Petition
- Jurisdiction invoked
- Articles 10, 27, 41, 42 and 47 of the Constitution of Kenya (Employment and Labour Relations Court jurisdiction)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Daniel Mwanyasi Mwalwala v Barclays Bank of Kenya Limited [2021] KEELRC 1069 (KLR)", Case Analysis (2021). Not stated in the extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1069/eng@2021-08-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.