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ELRCDismissedELRC Cause (Nairobi) - Amended Memorandum of Claim dated 10th May, 2021· [2024] KEELRC 2288 (KLR)

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.

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
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

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.