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ELRCPartially AllowedEmployment and Labour Relations Cause 1694 of 2017· [2023] KEELRC 3299 (KLR)

Memba v Yducha (Employment and Labour Relations Cause 1694 of 2017) [2023] KEELRC 3299 (KLR)

Employment and Labour Relations Court
18 December 2023
BMB. O. M. Manani
2,188 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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An employer won an unfair termination case in Kenya's Employment Court because the employee had already signed release vouchers accepting payment, even though the dismissal process was flawed.

What this practically means

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Executive summary

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The Claimant, employed by the Respondent as a security guard and gardener at a monthly salary of Ksh. 12,000.00, alleged unfair termination on 12th December 2016 without notice, hearing or payment of terminal dues, and further claimed unpaid house allowance, leave, overtime and public holiday pay. The Respondent conceded the employment but contended the Claimant was guilty of theft of farm produce and Ksh. 60,000.00 in cash, and of violence, including chasing the Respondent's wife with a machete, necessitating police ejection. The Respondent further asserted that after separation the Claimant was paid Ksh. 16,000.00 in terminal dues and, following Ministry of Labour intervention, a further Ksh. 10,000.00, against signed release vouchers. The court framed two issues: whether the termination was improper, and whether the Claimant was entitled to the reliefs sought. On the first, the court held the Respondent had valid reason to terminate - the Claimant's conduct amounted to gross misconduct under section 44 of the Employment Act - but found the termination procedurally flawed because no hearing was afforded, contrary to section 41. On the second, although the court would ordinarily grant relief under section 49, it declined to reopen compensation because the Claimant had freely executed two release vouchers and never sought to set them aside; his suit was an abuse of process. The termination was declared procedurally flawed, compensation was refused, and each party was ordered to bear its own costs. Judgment was delivered online with the parties' consent, waiver of Rule 28(3) ELRC Procedure Rules having been recorded.

Key legal issues

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01

Validity of reason for termination

Holding

The Respondent had valid reason to terminate the Claimant's contract, as his conduct amounted to gross misconduct under section 44 of the Employment Act

Reasoning

The Claimant was gardener and security guard over the property from which produce and cash went missing. Credible basis existed for reasonable suspicion of his involvement. Under section 43, the employer need only have reasonable grounds to believe the employee committed the infraction, not foolproof evidence.

p. 3
02

Due process (hearing) before termination

Holding

The Respondent failed to afford the Claimant a hearing contrary to section 41 of the Employment Act; termination was procedurally flawed

Reasoning

The Respondent's witness claimed a disciplinary session was held, but also testified the Claimant was violent with a machete that day and had to be ejected by police. The court found it incredible that a hearing could have occurred in such circumstances and preferred the Claimant's account.

p. 4
03

Effect of executed release vouchers on compensation

Holding

Although termination was procedurally flawed, the court declined to award compensation because the Claimant had signed release vouchers settling the matter and never sought to set them aside

Reasoning

The Claimant first denied signing the vouchers but admitted under cross-examination that he signed them in exchange for payments of Ksh. 16,000.00 and Ksh. 10,000.00. The vouchers constituted binding contracts; his subsequent suit was an abuse of the court process.

p. 4

Legal principles established

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  • An employer terminating a contract must establish both the validity of the reason and adherence to due process
  • A release voucher freely executed between parties constitutes a binding contract unless set aside on grounds available for setting aside contracts
  • Once parties execute a release voucher closing a matter, the court will not ordinarily reopen compensation

Court orders

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  1. 1.It is declared that the decision to terminate the Claimant's contract of service was procedurally flawed.
  2. 2.The court declines to reopen the question of compensation to the Claimant, the parties having signed release vouchers.
  3. 3.Each party shall bear own costs.

Authorities

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Legislation

  • Employment Actsection 41
  • Employment Actsection 43
  • Employment Actsection 44
  • Employment Actsection 49
  • ELRC Procedure RulesRule 28(3)

Cases cited (1)

  • Ronald Kipngeno Bii v Unliver Tea Kenya Limited
    [2022] eKLR
Jurisdiction invoked
Original employment and labour relations jurisdiction (ELRC); judgment references Employment Act and ELRC Procedure Rules

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, "Memba v Yducha (Employment and Labour Relations Cause 1694 of 2017) [2023] KEELRC 3299 (KLR)", Case Analysis (2023). Employment and Labour Relations Cause 1694 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/3299/eng@2023-12-18

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