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ELRCDismissedStatement of Claim dated 28th March 2023 (ELRC, Nairobi)· [2025] KEELRC 412 (KLR)

Sang v Chemusian Farm Limited (Cause E251 of 2023) [2025] KEELRC 412 (KLR)

Employment and Labour Relations Court
14 February 2025
SRSTELLA RUTTO
3,028 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court dismissed a Finance Manager's unfair termination claim because he signed a Deed of Separation, took Kshs 1.1 million, and waived his right to sue.

What this practically means

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Executive summary

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The Claimant, employed as Finance Manager on a three-year contract effective 1st April 2019, sued the Respondent claiming that his employment was unlawfully, unfairly and unprocedurally terminated on 29th October 2020. He sought a declaration of unfair termination and Kshs 7,250,000/= being salary for the remainder of the contract term and compensatory damages. The Respondent denied any summary dismissal, asserting that after a disciplinary process begun by a Show Cause letter of 15th September 2020 and a hearing on 27th October 2020, the parties negotiated a mutual separation and executed a Deed of Separation dated 11th February 2021, under which the Claimant received separation dues of Kshs 1,106,677/= and waived any claims arising from his employment. The court framed four issues: whether there was a termination; whether it was unfair; whether the Deed of Separation was binding; and entitlement to reliefs. Applying Section 47(5) of the Employment Act and the Court of Appeal decision in Pius Machafu Isindu v Lavington Security Guards Limited, the court found the Claimant did not discharge the burden of proving a termination: he exhibited no termination letter, declined to execute the 29th October 2020 letter, and the Respondent's follow-up emails were inconsistent with a termination. The court then held, following Coastal Bottlers v Kimathi Mithika, that the Deed of Separation was a binding contract voluntarily executed, that the Claimant was estopped by Clause 5 from filing suit, and that he could not approbate and reprobate after pocketing the separation dues. The suit was dismissed in its entirety with each party bearing its own costs.

Key legal issues

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01

Whether the Respondent terminated the Claimant's employment

Holding

No termination was proved; the employment ended mutually through the Deed of Separation dated 11th February 2021

Reasoning

The Claimant bore the burden under Section 47(5) of the Employment Act to prove termination. He exhibited no termination letter. The letter of 29th October 2020 referenced a mutual agreement which he did not execute, and the Respondent followed up on his whereabouts on 2nd and 3rd November 2020, inconsistent with a termination on 29th October 2020. Disciplinary proceedings did not conclude, as the parties opted for mutual separation via the Deed.

p. 5
02

Whether the Deed of Separation is binding on the Claimant

Holding

Yes; it was voluntarily executed, discharged the Respondent from employment-related claims, and estopped the Claimant from suing

Reasoning

The Claimant admitted executing the Deed and receiving separation dues of Kshs 1,106,677/=, but waited nearly two years before challenging it. He raised no duress or unconscionability issue at execution, and no evidence showed he signed involuntarily. As Finance Manager he understood the document. Following Coastal Bottlers v Kimathi Mithika, the court gave effect to the parties' intention; he cannot approbate and reprobate.

p. 6

Legal principles established

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  • The burden of proving unfair termination or wrongful dismissal lies on the employee under Section 47(5) of the Employment Act, and once discharged, the employer must justify the grounds for termination.
  • A settlement/separation agreement freely executed by parties is a binding contract which the court must give effect to, and it bars further employment claims where rights were waived.

Court orders

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  1. 1.The Claimant's suit is dismissed in its entirety
  2. 2.Each party to bear its own costs

Authorities

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Legislation

  • Employment ActSection 47(5)
  • Employment ActSections 43(1) and 45 (as cited in Pius Machafu Isindu)
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48
  • Civil Procedure ActSection 1B
  • Civil Procedure RulesOrder 21 Rule 1

Cases cited (7)

  • Riungu v Nation Media Group PLC
    (Employment and Labour Relations Cause 703 of 2019) [2024] KEELRC 870 (KLR)
  • William Barasa Obutiti v Mumias Sugar Company Limited
    Civil Appeal No. 198 of 2004 (2006) eKLR
  • Wokabi v British American Tobacco Kenya Limited
    (Cause 31 of 2016) [2022] KEELRC 12694 (KLR)
  • Gitaari v Kenya Hospital Association t/a The Nairobi Hospital
    (Cause E898 of 2021) [2024] KEELRC 1846 (KLR)
  • Beatrice Kananu Imathiu v British American Tobacco (K) Ltd
    [2020] eKLR
  • Pius Machafu Isindu vs Lavington Security Guards Limited
    [2017] eKLR
  • Coastal Bottlers vs Kimathi Mithika
    [2018] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes (Employment Act, Section 47(5) applied)

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, "Sang v Chemusian Farm Limited (Cause E251 of 2023) [2025] KEELRC 412 (KLR)", Case Analysis (2025). Statement of Claim dated 28th March 2023 (ELRC, Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/412/eng@2025-02-14

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