Kahiu & 8 others v Bollore Transport and Logistics Kenya Limited (Cause 259 of 2020) [2024] KEELRC 2288 (KLR)
The bottom line
#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
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Claimants' termination of employment was unfair and unlawful
- 2.Whether the Claimants were discriminated
- 3.Whether the Claimants are entitled to the reliefs sought
Key legal issues
#Whether termination of the Claimants via early retirement was unfair and unlawful
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.
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.
Whether the Claimants were discriminated against on the basis of age
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).
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.
Whether the Claimants were entitled to the reliefs sought
Not entitled; the entire claim was dismissed with no order as to costs.
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.
Legal principles established
#- 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
#- 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
#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
#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
12 months' pay for unfair dismissal for each Claimant
Unfair termination was not established; the Claimants willingly signed acceptance and discharge documents
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
Costs
No order as to costs considering the circumstances of separation between the parties
Quotable passages
#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
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.
The settled position both in statute and case law is that the employer must prove that the reason for termination was valid and fair.
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.
every business has a right to take initiatives to realise its goals by re-organizing and restructuring if need be
Issues in the judgment
#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.
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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.