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ELRCDismissedMemorandum of Claim dated 05.03.2020, filed 21.09.2020· [2022] KEELRC 1142 (KLR)

Werunga v Foremost Limited (Cause 52 of 2020) [2022] KEELRC 1142 (KLR)

Employment and Labour Relations Court
24 June 2022
BOByram Ongaya
2,065 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The claimant, employed by the respondent on a three-year fixed-term contract commencing 02.11.2016 at a gross monthly salary of Kshs.220,000, sued for a declaration of unfair termination, unpaid leave salary, notice pay, leave pay, twelve months' compensation and the balance of the contract term, totalling about Kshs.9,591,850.15. The respondent denied the claims, asserting the separation was a joint decision recorded in an agreement of 16.11.2017. The court identified three issues: the nature of the termination, entitlement to remedies, and payment of separation dues. It found that although financial difficulties existed, the claimant had voluntarily signed an agreement on 15.05.2017 to take six months' unpaid leave and another on 16.11.2017 terminating the contract on agreed terms including one month's notice pay and 25 days' leave pay totalling Kshs.290,070.30. Because the termination was not at the employer's sole initiative, it did not amount to redundancy under section 2 of the Employment Act, and the parties were bound by their voluntary agreements. On payment, the respondent's director testified with documentary exhibits that all agreed dues, including a cheque of Kshs.402,092.80, had been paid; the claimant produced no bank statement to rebut this, so the court found on a balance of probability that all agreed sums were paid. All prayers were consequently refused, the memorandum of claim was dismissed with no order as to costs, each party bearing their own costs. Judgment was delivered at Mombasa on 24 June 2022 by Byram Ongaya, Judge.

Key legal issues

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01

Nature of the termination - redundancy or mutual agreement

Holding

The contract ended by the parties' voluntary agreements of 15.05.2017 and 16.11.2017, not redundancy

Reasoning

The court accepted the Employment Act definition of redundancy, which requires termination at the initiative of the employer. Although financial difficulties existed, the claimant signed the agreement of 15.05.2017 going on unpaid leave and signed the 16.11.2017 termination agreement. Having signed voluntarily, he was bound, so termination was not at the employer's sole initiative.

p. 4
02

Whether the respondent paid all separation dues

Holding

On a balance of probability, the respondent established that all the agreed amounts were paid

Reasoning

RW testified with exhibited documents showing the amounts agreed on 15.05.2017 and 16.11.2017 had been paid, including a cheque of Kshs.402,092.80. The claimant did not exhibit his bank statement to rebut this evidence and offered no account reconciling the alleged unpaid sums, so the claim failed on the burden of proof.

p. 4

Legal principles established

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  • Parties are bound by voluntary agreements they sign ending a contract of service; such termination is not redundancy where it is not at the sole initiative of the employer

Court orders

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  1. 1.Judgment entered for the respondent against the claimant for dismissal of the memorandum of claim dated 05.03.2020 and filed on 21.09.2020
  2. 2.Each party to bear own costs of the suit

Authorities

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Legislation

  • Employment Actsection 2 (definition of redundancy)
  • Employment Actsection 43
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act (first-instance employment claim)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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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, "Werunga v Foremost Limited (Cause 52 of 2020) [2022] KEELRC 1142 (KLR)", Case Analysis (2022). Memorandum of Claim dated 05.03.2020, filed 21.09.2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/1142/eng@2022-06-24

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