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ELRCPartially AllowedNot stated in the judgment as provided· [2024] KEELRC 2671 (KLR)

Kibui v Harley Street Fertility Centre Kenya Limited (Cause 1331 of 2018) [2024] KEELRC 2671 (KLR)

Employment and Labour Relations Court
31 October 2024
JRJAMES RIKA
3,298 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled that a signed separation agreement ended employment consensually, so only the contractual bonus was payable — waiving notice pay means losing it.

What this practically means

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Executive summary

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The Claimant, a Clinical Embryologist employed by the Respondent, an in-vitro fertilization facility, sued claiming salary for April 2018, three months' notice pay, a contractual bonus of Kshs. 270,000, twelve months' salary for unfair termination, and overtime, gratuity and service pay totalling about Kshs. 5.7 million, plus a certificate of service. The Respondent asserted the employment ended consensually through minutes of 29th March 2018 in which both parties agreed to terminate immediately and waive the three-month notice period, and alleged the Claimant was negligent, misrepresented her experience, and breached a restrictive covenant. The Court found documented evidence of the Respondent's dissatisfaction with the Claimant's performance culminating in the minutes of 29th March 2018, which the Claimant signed and which she did not allege were coerced in her subsequent letter of 3rd April 2018. The Court held the termination was consensual, not unfair or unlawful. Compensation for unfair termination, April salary, and notice pay were refused, the latter because the Claimant waived it. The overtime claim failed for want of proof of the colossal figure pleaded. The Court allowed the guaranteed bonus of Kshs. 270,000 under clause 10.3, the Claimant having completed 18 months of service, ordered a certificate of service, made no order on costs, and awarded interest at court rate from the date of judgment until payment in full.

Key legal issues

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01

Whether the termination was unfair or consensual

Holding

Termination was consensual and not unfair or unlawful

Reasoning

The minutes of 29th March 2018 recorded mutual agreement to end the employment, waiving the notice period, and were signed by the Claimant. Preceding documented communications showed consistent dissatisfaction with her performance. Her letter of 3rd April 2018 referenced the minutes without alleging coercion and did not fault the consensual termination. The Court found no evidence of compulsion.

p. 6
02

Entitlement to bonus under clause 10.3

Holding

Claimant had completed the 18-month qualifying period and was entitled to the guaranteed bonus of Kshs. 270,000

Reasoning

Clause 10.3 provided for a guaranteed gross bonus of Kshs. 270,000 after the first 18 months. The Claimant worked from 5th September 2016 to 29th March 2018, completing 18 months. The Respondent did not establish why the benefit was not paid, and the Court allowed the claim.

p. 7
03

Claim for overtime, gratuity and service pay

Holding

Dismissed for failure of proof

Reasoning

The Claimant could not explain how she computed overtime of Kshs. 3,793,125 despite an annual salary of Kshs. 1,260,000, making the claim implausible. Evidence showed she was a habitual latecomer. The overtime prayer was also inexplicably merged with gratuity and service claims.

p. 7

Legal principles established

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  • A party cannot claim a contractual benefit that they expressly waived by agreement
  • A guaranteed contractual bonus earned upon completion of the qualifying service period must be paid even where employment ends consensually

Court orders

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  1. 1.The Respondent shall pay to the Claimant bonus at Kshs. 270,000
  2. 2.Certificate of Service to issue
  3. 3.No order on the costs
  4. 4.Interest allowed at court rate, from the date of Judgment, till payment is made in full
Jurisdiction invoked
Employment and labour relations dispute heard under the Employment and Labour Relations Court's first-instance jurisdiction

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, "Kibui v Harley Street Fertility Centre Kenya Limited (Cause 1331 of 2018) [2024] KEELRC 2671 (KLR)", Case Analysis (2024). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2671/eng@2024-10-31

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