Momanyi v Spedag Interfreight Limited (Cause 438 of 2019) [2024] KEELRC 1121 (KLR)

The Court compared the unsigned draft in the Claimant's bundle with the signed version and found terms were made more attractive in the executed copy, proving negotiation. The Claimant did not demonstrate his position was retained; it ceased to exist as positions declared redundant do. His assertions of malice and coercion were therefore not established on a balance of probabilities.

Applying the requirement that discrimination be proved in specific terms per Article 27, the Court found the Claimant, one of the few individuals of African extraction in the company, did not demonstrate he was treated differently. The Court noted his elevated supervisory position over an entire region, unlike other managers with smaller areas, could itself have been attacked as discriminatory, and absent proof of malice the Respondent's actions could not be labelled discriminatory.

The constitutional claims were premised on the assertions of coerced redundancy and denial of a hearing, which the Court found unproved given the negotiated and executed Mutual Separation Agreement. The Claimant not having secured findings on discrimination or vitiation, the constitutional claims fell with the main claim.

The Respondent's evidence was that clause 5.2 of the negotiated agreement reflected the parties' agreement that the labour officer would be notified for redundancies but not where there was mutual agreement. The Respondent distinguished Esther Wamaitha Waweru on the basis that there was no mutual separation agreement there, and the Claimant here occupied a unique position, whereas in that case several employees were in the same grade and the criteria and last-in-first-out principle were breached.