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ELRCDismissedNot stated in the extract· [2021] KEELRC 1069 (KLR)

Daniel Mwanyasi Mwalwala v Barclays Bank of Kenya Limited [2021] KEELRC 1069 (KLR)

Employment and Labour Relations Court
19 August 2021
4,848 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~19 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The Petitioner, formerly a Vice President and Head of CLM Telemarketing at the Respondent bank, alleged that he was forced to exit employment through a Voluntary Exit Scheme (VES) and discriminated against on account of his ill health (para paresis requiring thermotherapy). He sought declarations of constitutional violations (Articles 10, 27, 41, 42 and 47), twelve months' compensation for unfair termination, continuation of his staff loan rates, and general, aggravated and exemplary damages. The Respondent contended that he voluntarily applied for and accepted the VES, was paid Kshs. 4,637,760.20, and filed a Cross-Petition for refund of that sum should the VES be rescinded. The court framed four issues: coercion, discrimination, entitlement to reliefs, and the Cross-Petition. On the evidence, the court found the Petitioner was offered a choice between a disciplinary process and the VES, was given time to decide, applied by email and form, and accepted the offer and payment; following National Bank of Kenya v Hamida Bana and John Mburu, it held the VES contract was freely entered and binding, with no vitiating duress. On discrimination, the court found no differential treatment on account of illness contrary to Article 27(4) and section 5 of the Employment Act. All prayers failed; the car allowance claim was unpleaded and the loan prayer sought a rewriting of the VES terms. The Cross-Petition failed as overtaken by events. Each party was ordered to bear its own costs of both the Petition and the Cross-Petition.

Key legal issues

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01

Whether the Petitioner was coerced to apply for the VES

Holding

No coercion found; the Petitioner was given time to decide and voluntarily applied for and accepted the VES

Reasoning

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.

p. 5
02

Whether the Petitioner was discriminated against on account of his medical condition

Holding

No discrimination substantiated

Reasoning

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.

p. 6
03

Whether the Petitioner is entitled to the reliefs sought

Holding

Reliefs refused

Reasoning

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.

p. 6
04

Whether the Cross-Petition should be allowed

Holding

Cross-Petition failed as overtaken by events

Reasoning

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.

p. 6

Legal principles established

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  • 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

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  1. 1.The Petition is dismissed for want of merit
  2. 2.The Cross-Petition is overtaken by events and fails
  3. 3.Each party should bear its own costs of both the Petition and the Cross-Petition

Authorities

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Legislation

  • Constitution of KenyaArticles 10, 27, 41, 42, 47
  • Employment ActSections 5, 41, 43, 45
  • Evidence ActSection 120
  • ELRC Procedure RulesRule 28(3)

Cases cited (23)

  • Benson N. Irungu v Total Kenya Limited
    [2015] eKLR
  • Walter Ogal Anuro v Teachers Service Commission
    [2013] eKLR
  • Florence Kavosa Wanyaga v Kenya National Examination Council
    [2021] eKLR
  • Rose Wangui Mambo & 2 others v Limuru County Club & 17 others
    [2014] eKLR
  • Peter K. Waweru v Republic
    [2006] eKLR
  • James Mulinge v Freight Wings Limited
    [2016] eKLR
  • Kennedy Nyanguncha Omanga v Bob Morgan Services Limited
    [2013] eKLR
  • Oindi Zaippeline & 39 others v Karatina University & ano
    [2015] eKLR
  • Frank N. Kamau v Tusker Mattresses Ltd
    [2018] eKLR
  • Mutunga Nyamai v Chancery Restaurant Limited t/a China Plate
    [2020] eKLR
  • National Bank of Kenya Ltd v Pipeplastic Samkolit (K) Ltd & ano
    [2001] eKLR
  • Benson Owenga Anjere v Kivati Nduoto & ano
    [2013] eKLR
  • Pao On v Lau Yiu Long
    (1980) AC 614
  • Kenya Commercial Bank Limited & ano v Samuel Kamau Macharia & 2 Others
    [2008] eKLR
  • North Ocean Shipping Co. Ltd v Hyundai Construction Co Ltd
    [1979] QB 705
  • Krystalline Salt Limited v Kwekwe Mwakele & 67 others
  • National Bank of Kenya Limited v Hamida Bana & 103 others
    [2017] eKLR
  • National Westminister Bank Plc v Morgan
    [1985] 1 All WR
  • Package Insurance Brokers Ltd v Simon Gitau Gichuru
    [2019] eKLR
  • Joseph Njagi Mwita & 4 others v Barclays Bank Limited
    [2019] eKLR
  • Lilian Rhoda Adhiambo v Barclays Bank of Kenya
    [2021] eKLR
  • John Mburu v Consolidated Bank of Kenya
    [2018] eKLR
  • Ghandhi & Another vs Ruda
    (1986) KLR 556
Jurisdiction invoked
Articles 10, 27, 41, 42 and 47 of the Constitution of Kenya (Employment and Labour Relations Court jurisdiction)

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, "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.