Gitaari v Kenya Hospital Association t/a The Nairobi Hospital (Cause E898 of 2021) [2024] KEELRC 1846 (KLR)
The bottom line
#Kenya's Employment Court ruled that an employee who voluntarily signed a mutual separation agreement and took its money cannot later claim unfair termination.
What this practically means
#Executive summary
#Key legal issues
#Whether the Claimant was unfairly terminated or exited via a binding Mutual Separation Agreement
The exit was by a voluntary, binding MSA; the unfair termination claim fails
The Claimant was given the draft MSA, negotiated improvements, signed it and was paid terminal dues under it. Although a disciplinary process had been initiated via a show cause letter, the MSA became a soft landing. The Claimant had every right to refuse the MSA and insist on the disciplinary process; having elected the MSA route and received its proceeds, he cannot allege coercion or unfairness.
Whether the MSA was vitiated by duress, coercion or undue influence
No coercion was proved; the Claimant was given time, negotiated terms and signed voluntarily
The court found the Claimant was issued the draft MSA, given time to consider it, made suggestions which were incorporated, and the engrossed document was signed by both parties who then paid the Claimant his dues. Nothing was alleged or exhibited showing he protested the turn of events or was coerced into signing.
Approbate and reprobate
The Claimant cannot accept MSA proceeds yet refuse to be bound by it
Following Beatrice Kananu Imathiu v British American Tobacco (K) Ltd, the court held that no one is allowed to pick and choose only the favourable aspects of a transaction and reject the rest. The Claimant accepted payments under the MSA, making his claim unsustainable and inequitable.
Legal principles established
#- A party who voluntarily enters a mutual separation agreement, participates in crafting it and accepts its proceeds cannot turn around to challenge it as unfair; no one may approbate and reprobate at the same time.
- A mutual separation agreement is a binding contract which can only be vitiated by pleaded and proved fraud, coercion, duress or undue influence.
Court orders
#- 1.The suit is dismissed with costs
- 2.It is so ordered
- Jurisdiction invoked
- Article 162(2) of the Constitution (Labour and industrial relations jurisdiction); references to the Employment Act, 2007
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Ouma v Shree Swaminarayan Academy (Cause E827 of 2022) [2025] KEELRC 639 (KLR)[2025] KEELRC 639 (KLR)28 Feb 2025
Cite this brief
#Cite this brief
Caselaw, "Gitaari v Kenya Hospital Association t/a The Nairobi Hospital (Cause E898 of 2021) [2024] KEELRC 1846 (KLR)", Case Analysis (2024). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1846/eng@2024-07-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.