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ELRCDismissedCause No 989 of 2017· [2023] KEELRC 3238 (KLR)

Bunyi v Saab Kenya Limited (Cause 989 of 2017) [2023] KEELRC 3238 (KLR)

Employment and Labour Relations Court
7 December 2023
JGJacob Gakeri
3,817 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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An employee who signed a separation agreement and discharge voucher could not later sue for unpaid dues, as the Kenyan court dismissed all claims.

What this practically means

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Executive summary

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The Claimant, employed by the Respondent as an Assistant Chef from 1st July 2013 until his resignation effective 31st May 2016, sued for gratuity/terminal benefits, unpaid overtime, pay in lieu of annual leave and sick leave, plus damages for discrimination, costs and interest. He alleged he was coerced by the Respondent's representatives into accepting Kshs.835,510 under a Separation Agreement dated 8th June 2016 and a discharge voucher of 13th June 2016. The Respondent maintained he resigned voluntarily, took extensive approved leave (149 days including 77 annual leave days), worked under a contract excluding overtime compensation, and waived all claims in the separation documents. The court framed two issues: waiver and entitlement to the reliefs. It found the discrimination claim unsupported, as the Claimant's own signed leave applications contradicted his statement and he named no comparators. The overtime claim failed as unproven special damages and was contractually excluded; the leave and sick leave claims lacked evidential support; and gratuity, being contractual, was absent from the contract. On waiver, the court held the Separation Agreement and discharge voucher were legally enforceable, the waiver clause covered all entitlements, and the Claimant failed to prove duress or undue influence, rendering him estopped from pursuing further claims. The entire suit was dismissed with each party bearing own costs. Judgment delivered virtually at Nairobi on 7th December 2023 by Dr. Jacob Gakeri, Judge.

Key legal issues

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01

Whether the Claimant waived his right to pursue further claims

Holding

Yes - the Separation Agreement of 8th June 2016 containing a waiver clause and the discharge letter of 13th June 2016 bound him and estopped him from claiming further dues.

Reasoning

The court found the Separation Agreement was a legally enforceable contract. The waiver clause covered salary, benefits, leave, severance and all statutory entitlements. The Claimant collected the cheque five days after signing and raised no complaint. He tendered no evidence of duress or undue influence, so the documents bound him and promissory estoppel applied.

p. 8
02

Whether the Claimant was entitled to overtime, leave pay, sick leave pay and gratuity

Holding

No - each claim failed for want of proof and/or was excluded by the contract.

Reasoning

The contract expressly excluded compensation for hours exceeding 40 per week. Leave records showed approved leave of 149 days including 77 annual leave days, contradicting the Claimant's statement. No medical or documentary evidence supported the sick leave claim. The contract had no gratuity clause and he was not unionised. The court distinguished gratuity from statutory service pay.

p. 6
03

Whether the Claimant was discriminated against

Holding

No - the discrimination claim was unproven and dismissed.

Reasoning

The allegation rested on the Claimant's claim that he was denied leave while others took it. His own signed leave application forms showed he took 149 days of leave, all approved. He named no colleagues who were treated differently and offered no comparative evidence, so the claim could not stand.

p. 5

Legal principles established

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  • A settlement agreement and discharge voucher executed freely and with full knowledge are legally enforceable and bind an employee unless vitiated by duress, undue influence, fraud, mistake or misrepresentation.
  • A waiver clause in a separation agreement extinguishes further entitlements or claims arising from the employment.
  • A discharge voucher and waiver give rise to promissory estoppel unless the representation was secured through fraud, duress, mistake, undue influence or misrepresentation.
  • Overtime is a claim for special damages which must be both pleaded and specifically proved.
  • Gratuity is contractual or CBA-based and is not synonymous with statutory service pay under Section 35(5) of the Employment Act.

Court orders

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  1. 1.The suit is dismissed in its entirety.
  2. 2.Each party to bear their own costs.

Authorities

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Legislation

  • Employment ActSections 30(1) and (2), 35(5), 35(6)
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B
  • Constitution of KenyaArticles 159(2)(d), 48

Cases cited (15)

  • Samuel Chacha Mwita V Kenya Medical Research Institute
    (2014) eKLR
  • Pius Kimaiyo Langat V Co-operative Bank of Kenya Ltd
    (2017) eKLR
  • Samson Gwer & 5 others V Kenya Medical Research Institute
    (2020) eKLR
  • Onesmus Irungu KamaU V Faulu Microfinance Bank Ltd
    (2017) eKLR
  • Max Masoud Roshankar & another V Sky Aero Ltd
    (2015) eKLR
  • Alfred Nzomo Kithusi V Hillcrest Investments Ltd
    (2021) eKLR
  • Coastal Bottlers Ltd V Kimathi Mithika
    (2018) eKLR
  • Jayesh M. Sutaria V Jambo Biscuits (K) Ltd
    (2014) eKLR
  • John Mulinge Mutuku V Kartasi Industries Ltd
    (2019) eKLR
  • Esther Nyambura Ndegwa V Laboratory & Allied Ltd
    (2021) eKLR
  • Kyrstalline Salt Ltd V Kwekwe Mwakele & 67 others
    (2017)
  • Thomas De La Rue (K) Ltd V David Opondo Omutelema
    (2013) eKLR
  • Trinity Prime Investment Ltd V Lion of Kenya Insurance Co. Ltd
    (2015) eKLR
  • Katiwa Kanguli V Bamburi Cement Co. Ltd
    (2015) eKLR
  • Combe V Combe
    (1951) 2 K.B 215
Jurisdiction invoked
Employment and labour relations jurisdiction under Article 162(2) of the Constitution (not expressly cited in judgment)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (11)

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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, "Bunyi v Saab Kenya Limited (Cause 989 of 2017) [2023] KEELRC 3238 (KLR)", Case Analysis (2023). Cause No 989 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/3238/eng@2023-12-07

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