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ELRCPartially AllowedCause no. (Memorandum of Claim dated 27th January, 2022, filed 3rd March, 2022)· [2024] KEELRC 1911 (KLR)

Agira v Nyanas Water & Sanitation Ltd & another (Cause E011 of 2022) [2024] KEELRC 1911 (KLR)

Employment and Labour Relations Court
25 July 2024
CBC. N. Baari
2,688 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled that a worker who accepted a union-negotiated early retirement settlement cannot later claim he was unfairly dismissed.

What this practically means

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Executive summary

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The Claimant, employed from 24th January 1989 and summarily dismissed on 15th July 2020 for alleged abscondment of duty, sued for a declaration that his termination was unfair and for Kshs 3,556,684.39 comprising early retirement dues, unpaid salary, allowances, actuarial deficit, unremitted SACCO and pension contributions, and 12 months' compensation. The Respondents asserted the dismissal was justified and that the Claimant's appeal was compromised by a union-brokered agreement for early retirement, whose dues (Kshs 302,424 plus other payments) were paid in full. Both parties testified and filed written submissions. The court framed three issues: whether the Claimant retired, whether he was unfairly dismissed, and whether he was entitled to the remedies sought. Applying Flora N. Wasike v Destimo Wamboko, the court held that the early retirement agreement, negotiated by the union, compromised the appeal and replaced the dismissal; the Claimant, having admitted accepting the settlement and payment of 17 months' salary, could not approbate and reprobate by claiming wrongful dismissal. There was thus no dismissal, only an early retirement. On remedies, only the leave allowance claim succeeded: the court awarded Kshs 21,506/= for two years' unproven leave, holding that early retirement dues and 17 months' salary were settled, transfer allowance appeared on the December 2019 payslip uncontroverted, and the contributions claim lacked supporting SACCO or pension scheme statements. Compensation fell with the unfair termination claim. The suit was partially allowed, with each party bearing their own costs.

Key legal issues

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01

Whether the Claimant retired from the service of the Respondents

Holding

Yes - the agreement for early retirement compromised his appeal against summary dismissal, so the dismissal was substituted by retirement

Reasoning

The minutes of the appeal hearing and a letter dated 18th August 2020 showed the union negotiated a settlement converting the summary dismissal into early retirement. The Claimant admitted receiving 17 months' salary for the remainder of his contract. The court found the appeal was compromised, the dismissal was replaced, and the Claimant acquiesced to the settlement and must live by his decision.

p. 6
02

Whether the Claimant was unfairly dismissed

Holding

No - there was at the end of the day no dismissal; separation was by early retirement

Reasoning

Having found the dismissal verdict was set aside and substituted by an early retirement agreement reached through union mediation, the question of unfair or wrongful dismissal did not arise. The doctrine of approbation and reprobation, relied on by the Respondents, informed the court's view that the Claimant who accepted benefits under the settlement could not challenge its validity.

p. 6
03

Whether the Claimant is entitled to the remedies sought

Holding

Partially - only leave allowance of Kshs 21,506/= was merited; all other heads failed for want of proof or having been settled

Reasoning

The court examined each head of claim. Early retirement dues and the 17 months' salary had been settled; transfer allowance appeared on the December 2019 payslip uncontroverted; unremitted contributions lacked SACCO or pension scheme statements; only leave for two of three years was unproven as paid, warranting Kshs 21,506/=. Compensation fell away with the unfair termination claim.

p. 6

Legal principles established

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  • A party who voluntarily accepts a settlement negotiated on his behalf by his union and receives payment thereunder cannot later turn around and claim wrongful dismissal; a court will not interfere with an agreement between parties save on grounds for varying or rescinding a contract.

Court orders

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  1. 1.Award of Kshs 21,506/= to the Claimant on account of leave allowance
  2. 2.Dismissal of the rest of the prayers (early retirement dues, 17 months' salary, transfer allowance, unremitted contributions, compensation)
  3. 3.Each party to bear their own costs of the suit

Authorities

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Legislation

  • Employment ActSection 43(1)
  • Employment ActSection 44(4)
  • Employment ActSection 45(1)
  • Employment ActSection 28
  • Employment ActSection 31
  • Employment ActSection 35(5)

Cases cited (7)

  • Anthony Mkala v Malindi Water & Sewerage Company ltd
    Cause no 64 of 2012
  • Grain Pro Kenya Inc ltd v Andrew Waithaka Kiragu
    (2019) eKLR
  • George Onyango Akuti v G4s
  • Alfred Muthomi & others v National Bank of Kenya Limited
    [2018] eKLR
  • Republic v Institute of Certified Public Secretaries of Kenya Ex-parte Mundia Njeru Geteria
    [2010] eKLR
  • Evans v Bartlam
    [1937] 2 ALL ER 649
  • Flora N. Wasike v Destimo Wamboko
    [1988] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act and Labour Relations Act (first-instance employment cause)

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, "Agira v Nyanas Water & Sanitation Ltd & another (Cause E011 of 2022) [2024] KEELRC 1911 (KLR)", Case Analysis (2024). Cause no. (Memorandum of Claim dated 27th January, 2022, filed 3rd March, 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1911/eng@2024-07-25

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