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ELRCDismissedELRC Cause (Nairobi) - Amended Memorandum of Claim dated 10th May, 2021

Kahiu & 8 others v Bollore Transport and Logistics Kenya Limited (Cause 259 of 2020) [2024] KEELRC 2288 (KLR)

Employment and Labour Relations Court
25 September 2024
9,593 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~38 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court ruled eight Bollore employees' early retirement was fair because the employer proved valid reasons, followed procedure, and the workers signed exit agreements willingly.

What this practically means

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Executive summary

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Eight former employees of Bollore Transport & Logistics Kenya Limited (successor to Bolloré/AGL) sued claiming that their December 2019/January 2020 forced early retirement was unfair, unlawful and discriminatory. They asserted they were not members of KAWU, the union whose 2018-2021 CBA clause 46 the Respondent invoked, that the notices gave no option to accept or reject, and that others (notably Emma Gichuhi, who received Kshs 6 million ex-gratia, and employees taken through redundancy) received better terms. They sought declarations of unfair termination and discrimination, 12 months' compensation, service pay, salary for remaining years to retirement, and damages. The Respondent justified the early retirement as a contractual right under clause 46 of the KAWU CBA following restructuring occasioned by the SGR cargo directive and IT changes, maintaining that roles were not abolished (hence no redundancy), that consultative meetings, counselling and notices were held, and that the Claimants voluntarily signed acceptance letters and discharge vouchers as full and final settlement. The court framed three issues: fairness of the termination, discrimination, and entitlement to reliefs. It held the applicable CBA was that with KAWU; the Respondent proved a valid reason and fair procedure; the Claimants, absent duress, were bound by their signed acceptances and discharge vouchers; and no discrimination was proved, the Respondent having discharged its burden. The entire claim was dismissed with no order as to costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Claimants' termination of employment was unfair and unlawful
  2. 2.Whether the Claimants were discriminated
  3. 3.Whether the Claimants are entitled to the reliefs sought

Key legal issues

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01

Whether termination of the Claimants via early retirement was unfair and unlawful

Holding

The termination was not unfair: the reason (restructuring following the launch of the SGR, roles requiring different skillsets) was valid and sanctioned by clause 46 of the KAWU CBA, and the procedure (consultative meetings, notices, counselling sessions, acceptance letters) was fair.

Reasoning

The court found the applicable CBA was that with KAWU, whose recognition agreement had been judicially validated. The Respondent proved a valid commercial reason for restructuring; redundancy was not apt since the Claimants' roles were not abolished. Procedurally, the Claimants attended consultative meetings and counselling, were given notices with their packages, and signed acceptance letters and discharge vouchers without proof of duress, coercion or misrepresentation, binding them to the agreed separation.

p. 15
02

Whether the Claimants were discriminated against on the basis of age

Holding

No discrimination was proved; the Claimants led no tangible evidence, and the Respondent explained the differential treatment of Emma Gichuhi (negotiated ex-gratia as the only affected senior manager).

Reasoning

The court adopted the Supreme Court's definition of discrimination in Gichuru v Package Insurance Brokers and the Court of Appeal's formulation in Barclays Bank v Gladys Muthoni. Allegations based on Emma Gichuhi's ex-gratia payment and other employees' redundancy packages were not substantiated; the Respondent discharged its burden by explaining that 18 employees were affected and only the Claimants sued.

p. 16
03

Whether the Claimants were entitled to the reliefs sought

Holding

Not entitled; the entire claim was dismissed with no order as to costs.

Reasoning

Having found the termination fair and lawful and no discrimination established, the court held it would be unjust to order the Respondent to pay the Claimants more than what they willingly accepted as full and final settlement under the discharge vouchers.

p. 15

Legal principles established

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  • An employer must prove that the reason for termination was valid and fair (sections 43 and 45 Employment Act).
  • A business has a right to re-organize and restructure to realize its goals.
  • A validly signed acceptance and discharge voucher binds an employee absent proof of duress, coercion or misrepresentation.
  • Duress requires coercion of the will vitiating consent; commercial pressure is not enough.
  • Discrimination requires differential treatment on a prohibited ground without objective and reasonable justification, and must be proved on a balance of probabilities.

Court orders

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  1. 1.The claim in its entirety is found without merit and is dismissed with no order as to costs considering the circumstances of separation between the parties

The bench

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One judgment of the whole court — no separate or dissenting opinions.

Wrote the judgment

Jurisdiction invoked
Original jurisdiction of the Employment and Labour Relations Court under Article 162(2) of the Constitution (implied by the nature of the ELRC cause); employment dispute founded on Article 41 of the Constitution and the Employment Act

Relief refused

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Declaration that the forced early retirement was unfair, unlawful and against fair labour practices

The Respondent proved a valid reason and followed fair procedure under the CBA and sections 41 and 43 of the Employment Act

p. 15

12 months' pay for unfair dismissal for each Claimant

Unfair termination was not established; the Claimants willingly signed acceptance and discharge documents

p. 16

Service pay and severance pay

Not pursued in the holdings; separation was by early retirement, not redundancy, and service pay is barred for NSSF members per the Respondent's submissions

Salary for the remainder of years until retirement

Anticipatory damage not proved or awarded

General, aggravated and exemplary damages for discrimination and distress

No tangible evidence of discrimination was led

p. 16

Costs

No order as to costs considering the circumstances of separation between the parties

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

From the foregoing, the court finds the claim for unfair termination unmerited
p. 16unfair termination claim rejected
In conclusion this court finds and holds that the claim in its entirety is found without merit and is hereby dismissed with no order as to costs considering the circumstances of separation between the parties.
p. 16final orders - dismissal and costs
The settled position both in statute and case law is that the employer must prove that the reason for termination was valid and fair.
p. 14burden of proof on employer
Without proof of duress, coercion or misrepresentation the court is persuaded that the Claimants willingly signed the documents and were paid their exit package thereafter.
p. 15binding effect of discharge vouchers
every business has a right to take initiatives to realise its goals by re-organizing and restructuring if need be
p. 14employer's right to restructure

Issues in the judgment

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minor

The judgment is internally inconsistent on whether Daniel Kahindo attended the meeting of 27th January, 2020: his testimony contradicts the Respondent's account, and RW2 states he refused redeployment at that meeting.

minor

The signature block of the judgment says 'PRESIDING JUDGE-APPEALS DIVISION' although this is a first-instance ELRC cause, creating ambiguity as to the judge's designation.

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, "Kahiu & 8 others v Bollore Transport and Logistics Kenya Limited (Cause 259 of 2020) [2024] KEELRC 2288 (KLR)", Case Analysis (2024). ELRC Cause (Nairobi) - Amended Memorandum of Claim dated 10th May, 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2288/eng@2024-09-25

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