Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCPartially AllowedMemorandum of Claim dated 10th October 2016· [2022] KEELRC 833 (KLR)

Evans Zimbaso Indege & 8 others v Africa Apparels (EPZ) Limited [2022] KEELRC 833 (KLR)

Employment and Labour Relations Court
7 February 2022
4,524 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~18 min to read original · ~4 min brief

The bottom line

#

A Kenyan court ruled that signing a clearance certificate doesn't stop employees from claiming unfair dismissal, but compensation was limited to one month's salary.

What this practically means

#

Executive summary

#
Nine claimants, formerly employees of Africa Apparels EPZ Ltd serving on renewable six-month contracts, sued alleging unlawful and unfair summary dismissal on 25th February 2015 after allegedly participating in a strike. They sought a declaration of unfair dismissal, February 2015 salary, four months' salary for the unexpired contract period, twelve months' compensatory damages, interest and costs. The Respondent contended the claimants participated in a go-slow, were dismissed following a disciplinary process, and had executed clearance certificates in full and final settlement. The 5th Claimant (Thomas Mmpanga) withdrew before hearing. The Court framed three issues: the effect of the clearance certificates, the fairness of the dismissal, and entitlement to reliefs. On the first, following Court of Appeal authority on discharge vouchers, it held the certificates did not waive the Claimants' rights because they lacked a tabulation of entitlements and the Claimants were not shown to have been seized of all relevant information - they were understood to relate to February salary only. On substance, the Court found the Respondent proved a justifiable reason for dismissal (interruption of work) under Section 43 of the Employment Act. On procedure, however, it found no compliance with Section 41 - no notice, no recorded disciplinary hearing - rendering the dismissal procedurally unfair. The Court declared the dismissal unlawful, awarded each remaining Claimant one month's salary in lieu of notice and one month's salary as compensation under Section 49, declined the February salary, unexpired-contract and enhanced compensation claims, and awarded the Claimants costs with interest from judgment. Judgment delivered virtually at Nairobi on 7th February 2022 by Dr. Jacob Gakeri, Judge.

Key legal issues

#
01

Whether the clearance certificates discharged the Respondent from further liability

Holding

The clearance certificates did not waive the Claimants' rights to pursue further claims because they had no tabulation of entitlements and the Claimants were not seized of all relevant information

Reasoning

The Court applied the principle that discharge vouchers bind parties under freedom of contract but only where the employee freely and willingly executed the voucher with full knowledge. Here the certificates guaranteed payment for February salary only, lacked a tabulation of entitlements, and the evidence showed employees were only told the documents would enable them access February salary. The Court was not persuaded the Claimants understood they were waiving further claims.

p. 7
02

Whether the reasons for dismissal were substantiated

Holding

The Respondent established on a balance of probabilities a justifiable reason for dismissal - interruption of work on 21st, 24th and 25th February 2015

Reasoning

Applying Section 43(2) of the Employment Act, the Court found that despite the Claimants' denial of a strike, there was an impasse over salary matters and an interruption of work on the relevant dates in which the Claimants were involved. RW1 testified about a go-slow and an address by HR and the shop steward, which the Claimants acknowledged. The Claimants' compressor-pressure explanation was unsubstantiated.

p. 7
03

Whether the dismissal complied with Section 41 procedure

Holding

The dismissal was procedurally unfair for want of compliance with Section 41

Reasoning

Section 41 prescribes mandatory notification and hearing before termination. The Respondent alleged a disciplinary process but furnished no evidence of notice, attendance, membership of a disciplinary committee, or consideration of representations. RW1 confirmed the process was by word of mouth and that notice was not issued. The haste of the dismissals further rendered the process procedurally defective.

p. 8

Legal principles established

#
  • A discharge voucher/clearance certificate cannot absolve an employer from statutory obligations unless it was freely and willingly executed when the employee was seized of all relevant information and knowledge
  • Termination of employment must pass both substantive justification and procedural fairness
  • Non-compliance with the mandatory provisions of Section 41 of the Employment Act renders a termination procedurally unfair

Court orders

#
  1. 1.Declaration that the Claimants' dismissal was unlawful
  2. 2.The Claimants except the 5th Claimant are awarded one (1) month's salary in lieu of notice
  3. 3.The Claimants except the 5th Claimant are awarded the equivalent of one (1) month's salary as compensation for unfair dismissal
  4. 4.The Claimants have costs of the suit
  5. 5.Interest at court rates from the date of judgment till payment in full

Authorities

#

Legislation

  • Employment ActSection 43
  • Employment ActSection 41
  • Employment ActSection 44
  • Employment ActSection 45
  • Employment ActSection 45(2)(c)
  • Employment ActSection 47(5)
  • Employment ActSection 35
  • Employment ActSection 43(2)
  • Employment ActSection 49(1)(c)
  • Employment ActSection 49(4)
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B

Cases cited (17)

  • Evans Kamadi Misango v Barclays Bank for Kenya Limited
    [2015] eKLR
  • Walter Ogal Anuro v Teachers Service Commission
    [2013] eKLR
  • Pius Machafu Isindu v Lavington Security Guards Limited
    [2017] eKLR
  • Mary Chemweno Kiptui v Kenya Pipeline Company
    [2014] eKLR
  • Donald Odek v Fidelity Security Limited
    [2012] eKLR
  • Thomas Sila Nzilo v Bamburi Cement Limited
    [2014] eKLR
  • Nazareno Kariuki v Feed the Children Kenya
    [2014] eKLR
  • Judicial Service Commission v Gladys Boss Shollei
    [2014] eKLR
  • National Bank of Kenya Limited v Pipeplastic Samkdit (K) Limited & another
    [2011] eKLR
  • Krystalline Salt Limited v Kwekwe Mwakele & 67 others
    [2017] eKLR
  • Coastal Bottlers Limited v Kimathi Mithika
    [2018] eKLR
  • Thomas De La Rue (K) Ltd v David Opondo Omutelema
    [2013] eKLR
  • Trinity Prime Investment Limited v Lion of Kenya Insurance Company Limited
    [2015] eKLR
  • Damondar Jihabhai & Co Ltd & Another v Eustace Sisal Estates Ltd
    1967 EA 153
  • Kenya Union of Commercial Food and Allied Workers v Meru North Farmers Sacco Ltd
    [2020] eKLR
  • Loice Otieno v Kenya Commercial Bank Ltd
    [2013] eKLR
  • D. K. Njagi Marete v Teachers Service Commission
    [2020] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007

Key timeline

#

Practical implications

#

Frequently asked questions

#

Later judgments citing this (2)

#

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

Cite this brief

#

Cite this brief

Caselaw, "Evans Zimbaso Indege & 8 others v Africa Apparels (EPZ) Limited [2022] KEELRC 833 (KLR)", Case Analysis (2022). Memorandum of Claim dated 10th October 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/833/eng@2022-02-07

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