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ELRCDismissedCause (Employment and Labour Relations Court) – 79-Claimant Voluntary Exit Scheme Claim; details not stated in judgment text· [2024] KEELRC 2766 (KLR)

Nyaga & 78 others v Barclays Bank of Kenya Limited (Cause 1122 of 2018) [2024] KEELRC 2766 (KLR)

Employment and Labour Relations Court of Kenya
12 November 2024
9,281 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~37 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court ruled Access Bank's voluntary exit scheme was fair and lawful, dismissing 79 former employees' claims and ordering them to pay costs.

What this practically means

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Executive summary

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Seventy-nine former employees of Access Bank PLC Kenya exited employment through the bank's Voluntary Exit Schemes of June 2017 and January 2018 and sued, alleging the schemes were coerced, lacked consultation, violated Section 40 of the Employment Act, the CBA, and constitutional rights, and sought declarations, re-computation of benefits at uncapped rates, recall and renegotiation of VES, loan-rate relief, information orders and damages. The Respondent denied the claim, contending VES was voluntary, consultative through the Joint Working Council with BIFU, and outside redundancy law, and counterclaimed for commercial interest on outstanding loans. After hearing seven Claimant witnesses and the Respondent's Head of Employment Relations, the Court found the schemes consultative and consensual, with no evidence of duress, hostile environment or non-disclosure. It held that VES agreements are separate contracts for termination of employment, not governed by Section 40 or the CBA, and that Claimants could not escape their bargain absent proof of coercion, fraud or undue influence. Claimant No. 68 ('XX'), whose identity was never disclosed, was struck off. Recall and renegotiation failed for want of any offer to refund VES packages. The Counterclaim failed because interim orders of 18th July 2018 fixing preferential interest rates stood unappealed and the loans were unparticularized. The Claim was dismissed with costs to the Respondent; the Counterclaim was dismissed with no order as to costs.

Key legal issues

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01

Whether the VES 2017/2018 was unfair, unlawful or unconstitutional

Holding

The VES was fair, lawful and consensual; Claimants volunteered, applied, accepted and were paid, with JWC consultation involving BIFU

Reasoning

The Court traced the JWC consultations, the circulars, the 2-week application windows, acceptance forms and payments. Claimants' claims of duress and hostile environment were unsupported; many applied for personal reasons stated in their own applications, and none lodged queries with the Head of Human Resource. Section 40 redundancy requirements did not apply as no roles were declared redundant.

p. 15
02

Whether Section 40 of the Employment Act and the CBA applied to VES

Holding

Neither applied; VES was not redundancy and the CBA did not govern the voluntary exit

Reasoning

The Court held there were no declared redundancies, no LIFO requirement, no obligation to notify the Labour Office or consult BIFU on a voluntary termination exercise, and the Respondent had even exceeded legal obligations by engaging the JWC. Automation and mobile banking did not create a redundancy situation.

p. 17
03

Whether VES should be recalled and renegotiated

Holding

No; no foundation, as Claimants did not offer to refund what they received

Reasoning

Recall would reset parties to 19th June 2017 on a tabula rasa and require Claimants to repay their packages. The Court found the demand untenable and the Claimants cannot have their cake and eat it.

p. 18
04

Whether the Respondent's Counterclaim for commercial interest was established

Holding

Counterclaim declined; the interim orders of 18th July 2018 stood unappealed and the loans were not particularized

Reasoning

The Court's orders of 18th July 2018 directing repayment at staff preferential rates were executed and accepted by both parties, and no appeal was lodged. The Counterclaim also failed to specify figures, accumulated interest, or which Claimants still held loans seven years after exit.

p. 19
05

Status of the unnamed Claimant No. 68 (XX)

Holding

The Claim by XX was struck off for failure to disclose personal particulars as required by the E&LRC Procedure Rules

Reasoning

Rule 7(1)(a) of the 2024 Rules (formerly Rule 4 of the 2016 Rules) demands names and addresses. The Claimant was identified only as 'XX' even after multiple amendments, an 'unusual Claimant' whose claim was unsustainable.

p. 13

Legal principles established

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  • VERS/VES agreements are separate contracts for the termination of employment, not contracts of employment, and supersede pre-existing contractual terms unless benefits are expressly incorporated
  • Section 40 of the Employment Act (redundancy) does not apply to voluntary exit schemes; a business may restructure without declaring redundancies
  • A VES exit agreement is valid and binding if it meets minimum terms under Section 27 of the Employment Act
  • Parties are bound by their contract unless coercion, fraud or undue influence are pleaded and proved; a party cannot escape a bad bargain
  • An offeror is not required to compute benefits payable under a VES offer before acceptance, since the agreement becomes effective only upon acceptance

Court orders

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  1. 1.The Claim by Claimant No. 68 (XX) is struck off
  2. 2.The Claim is declined with costs to the Respondent
  3. 3.The Counterclaim is declined with no order on the costs
Jurisdiction invoked
Jurisdiction under the Employment Act and the Employment and Labour Relations Court Act (statutory employment dispute jurisdiction); not expressly anchored to a cited article in the judgment

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, "Nyaga & 78 others v Barclays Bank of Kenya Limited (Cause 1122 of 2018) [2024] KEELRC 2766 (KLR)", Case Analysis (2024). Cause (Employment and Labour Relations Court) – 79-Claimant Voluntary Exit Scheme Claim; details not stated in judgment text. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2766/eng@2024-11-11

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