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ELRCDismissedStatement of Claim dated 13th August 2019 (ELRC, Kisumu)· [2024] KEELRC 2107 (KLR)

Gichuki v Christian Aid (Cause 528 of 2019) [2024] KEELRC 2107 (KLR)

Employment and Labour Relations Court
23 July 2024
NMNzioki wa Makau
2,777 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 dismissed an unfair dismissal suit because the employee had signed a discharge voucher releasing her employer, but made the employer pay its own legal costs.

What this practically means

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Executive summary

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By a Statement of Claim dated 13th August 2019, the Claimant, formerly employed as a Grants Officer – Case OVC Project Meru, sued the Respondent Company for wrongful and unlawful summary dismissal following disciplinary proceedings over alleged interference with partner procurement processes and manipulation of partner budgets. She sought a declaration of unfair dismissal, twelve months' salary under section 49 of the Employment Act, two months' notice pay, housing allowance, general damages, damages for loss of future earnings, interest and costs. The Respondent defended the dismissal as warranted gross misconduct, contending due process was followed and that the Claimant's terminal dues were settled and she executed a Discharge of Liability. Both parties filed detailed submissions canvassing burden of proof, substantive justification, procedural fairness, the composition of the disciplinary panel, and whether the salary was consolidated so as to include housing allowance. The court identified the discharge voucher as the turning point of the case, holding that a discharge executed freely without vitiating elements is a complete contract binding on the parties; the Claimant, having exonerated the Respondent from any further claims, could not resile from it even if the payment was less than her full entitlement. The suit was accordingly dismissed. However, on costs, the court departed from the ordinary rule that costs follow the event, criticising the Respondent for not properly articulating items such as housing in the Claimant's remuneration, and ordered each party to bear their own costs. Judgment was delivered at Kisumu on 23rd July 2024 by Nzioki wa Makau, Judge.

Key legal issues

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01

Effect of the Discharge of Liability

Holding

The Claimant, having executed a discharge exonerating the Respondent from any further or future claims, cannot resile from it, and the Respondent is protected from suit even if the payment was less than the full entitlement

Reasoning

The court identified discharge as the turning point of the case. It reasoned that a discharge executed freely, absent vitiating elements, binds the parties; the Claimant sued despite having exculpated the Respondent, and the only available outcome was dismissal of the suit. No findings were made on the fairness of the dismissal itself.

p. 5
02

Costs despite dismissal

Holding

Although costs ordinarily follow the event and this would have been an appropriate case for costs, the court ordered each party to bear their own costs because of the Respondent's deficient articulation of housing in the remuneration

Reasoning

The court held that the Respondent 'acted in less than a Christian manner' by not properly articulating items such as housing, which are necessary to discharge an employer from accrued housing liability where it is unclear whether the salary included a housing element. This justified departing from the ordinary rule on costs.

p. 5

Legal principles established

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  • A discharge executed freely without vitiating elements is a complete contract binding on the parties, even if the payment under it was less than the full entitlement

Court orders

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

Authorities

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Legislation

  • Employment Actsection 49
  • Employment Actsection 43
  • Employment Actsection 45
  • Employment Actsection 47(5)
  • Employment Actsection 36
  • Employment Actsection 31
  • Employment Actsections 44(3) and (4)
  • Employment Actsection 41
  • Employment Actsections 45(5) and 51
  • Employment Actsection 26
  • Employment and Labour Relations Court (Procedure) Rules, 2016Rule 13
  • Constitution of KenyaArticle 20(2)(b)

Cases cited (10)

  • National Bank of Kenya v Samuel Nauru Mutonya
    [2019] eKLR
  • Walter Ogal Anuro v Teachers Service Commission
    [2013] eKLR
  • Rebecca Ann Maina & 2 others v Jomo Kenyatta University of Agriculture and Technology
    [2014] eKLR
  • Jubilee Jumbo Hardware Ltd v Rogaciana Rading Ogwang
    [2021] eKLR
  • Galgalo Jarso Jillo v Agricultural Finance Corporation
    [2021] eKLR
  • Kenya Revenue Authority v Reuwel Waithaka Gitahi & 2 others
    [2019] eKLR
  • Postal Corporation of Kenya v Andrew K. Tanui
    [2019] eKLR
  • Republic v Chairman Public Procurement Administrative Review Board & another Ex-Parte Zapkass Consulting and Training Limited & another
    [2014] eKLR
  • Trinity Prime Investment Limited v Lion of Kenya Insurance Company Limited
    [2015] eKLR
  • Kenya Broadcasting Corporation v Geoffrey Wakio
    [2019] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment and labour relations disputes (Employment Act, 2007; ELRC (Procedure) Rules, 2016)

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, "Gichuki v Christian Aid (Cause 528 of 2019) [2024] KEELRC 2107 (KLR)", Case Analysis (2024). Statement of Claim dated 13th August 2019 (ELRC, Kisumu). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2107/eng@2024-07-23

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