Gichura v Armchair Insurance Brokers Ltd (Cause 150 of 2019) [2023] KEELRC 759 (KLR)
The bottom line
#A Kenyan employment court refused to force an employer to hand over confidential financial statements to a former employee who had no contractual right to a share of profits.
What this practically means
#Executive summary
#Key legal issues
#Whether the ELRC has jurisdiction over the claim for compensation for unauthorised use of the claimant's testimonials
The court has jurisdiction because the dispute arises from an acknowledged employment relationship between the claimant and the respondent.
The respondent argued the claim was commercial and outside section 12 of the ELRC Act. The court noted there was a contract of employment and both parties accepted an employment relationship existed; the claimant was terminated from employment as well as removed as director and principal officer. The dispute therefore arose from employment, conferring jurisdiction under Article 162(2) and section 12 of the ELRC Act.
Whether signing a discharge voucher and a partial mediation agreement divested the court of jurisdiction
No; the discharge voucher argument fails because the parties later entered a partial mediation agreement leaving outstanding issues for court determination.
The respondent contended the discharge voucher of November 6, 2018 absolved it of further claims. The court held that the subsequent partial mediation agreement, which expressly reserved severance pay, compensation for use of testimonials and notice pay for determination, contradicted the contention that all claims were settled; the mediation agreement is not a consent and is not conclusive of the suit.
Whether the respondent should be compelled to produce financial documents for the claim of 10% of net profits
The application was dismissed because there was no contractual entitlement to a 10% commission and the documents sought were confidential.
The court found no provision in the contract of employment for payment of a 10% commission on the respondent's profits, and stated courts cannot rewrite contracts. Relying on Lelan I Salano v Intercontinental Hotel, it held the financial statements are confidential documents and it would be unfair to avail them to a former employee whose employment ended on November 6, 2018.
Legal principles established
#- A dispute arising out of an employment relationship falls within the exclusive jurisdiction of the ELRC under Article 162(2) and section 12 of the ELRC Act.
- A discharge voucher does not divest the court of jurisdiction where the parties subsequently executed a partial mediation agreement leaving issues for determination.
- Parties in an employment relationship are bound by their contract of employment, and courts cannot rewrite contracts.
Court orders
#- 1.The application dated July 15, 2022 is dismissed.
- 2.Costs are in the cause.
- 3.The claimant may proceed with the other unresolved issues as per the partial mediation agreement.
- Jurisdiction invoked
- Article 162(2) of the Constitution and section 12 of the Employment and Labour Relations Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Gichura v Armchair Insurance Brokers Ltd (Cause 150 of 2019) [2023] KEELRC 759 (KLR)", Case Analysis (2023). Cause No 150 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/759/eng@2023-03-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.