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ELRCDismissed(memorandum of claim dated 29.03.2018)· [2025] KEELRC 467 (KLR)

Nzowa v Dunhill Consulting Limited (Cause 546 of 2018) [2025] KEELRC 467 (KLR)

Employment and Labour Relations Court
21 February 2025
BOBYRAM ONGAYA
1,209 words in judgment
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The bottom line

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The Employment and Labour Relations Court dismissed an unfair termination suit because the employee had signed a mutual separation agreement and accepted all final dues.

What this practically means

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Executive summary

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The claimant, employed as a Site Reliever by contract dated 26.09.2016 at a gross monthly salary of Kshs.30,000, sued for salary for July, general damages equivalent to 12 months' salary for unlawful and unfair termination, one month's pay in lieu of notice, pro-rata leave and other benefits. He alleged his employment was terminated on 19.06.2017 without the requisite one month's notice or a hearing, and without disclosure of reasons. The respondent denied unfair termination, asserting the claimant was a habitual offender who neglected his contractual obligations, received several verbal warnings for gross misconduct and insubordination, and was lawfully separated, after which he underwent administrative clearance and was paid his final dues. The claimant testified and the respondent called Jenard Mwaniki Nyaga, Group Human Resource Consultant. The Court found the parties were in a contract of service terminated by letter dated 28.06.2017 effective 19.06.2017, with the claimant retained for handover until 28.06.2017 and paid June salary plus pay up to 19.07.2017, net Kshs.31,144 after deductions. The claimant admitted receiving performance warnings, did not reject the termination, and signed acknowledging acceptance of final dues with no further claims. The Court held the termination was by mutual consent, that the separation agreement was fully performed, and that the unfair termination claim was a mere afterthought. All reliefs collapsed. The suit was dismissed with each party bearing own costs.

Key legal issues

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01

Whether the termination was unlawful and unfair

Holding

The termination was by mutual consent and agreement of the parties; the unfair termination claim was a mere afterthought

Reasoning

The claimant admitted receiving warnings over performance and did not reject the termination. He signed the termination letter, accepted final dues with no further claims, and never protested or appealed. The respondent honoured the separation terms, paying June salary and pay up to 19.07.2017. The Court concluded the parties discussed and mutually agreed to separate, and fully performed the separation agreement.

p. 3
02

Whether the claimed salary, notice pay and leave remained outstanding

Holding

The reliefs collapsed because the parties complied with the terms of the separation agreement

Reasoning

The termination letter provided for June salary of Kshs.30,000 plus pay up to 19.07.2017 of Kshs.21,250, less loan and statutory deductions, netting Kshs.31,144. The claimant acknowledged acceptance of final dues with no further claims, and did not suggest he ever protested against the payments.

p. 3
03

Whether termination was on account of poor performance

Holding

Poor performance was established but the separation was by mutual agreement, not a separation upon poor performance imposed by the employer

Reasoning

The Court found evidence of performance issues and several warnings credible, but held it a misdirection to characterise the separation as one upon poor performance. Rather, following the warnings, the parties discussed and mutually agreed to separate on the terms set out in the termination letter, which both sides performed.

p. 3

Legal principles established

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  • Where parties mutually agree to separate on terms and both fully perform those terms, the employee cannot later claim unfair termination

Court orders

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  1. 1.The suit is dismissed
  2. 2.Each party to bear own costs of the suit
  3. 3.Decree to issue accordingly
Jurisdiction invoked
Employment and labour relations jurisdiction (Employment and Labour Relations Court 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, "Nzowa v Dunhill Consulting Limited (Cause 546 of 2018) [2025] KEELRC 467 (KLR)", Case Analysis (2025). (memorandum of claim dated 29.03.2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/467/eng@2025-02-21

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