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ELRCDismissedPetition dated 20th November 2018· [2025] KEELRC 1488 (KLR)

Barrito v Phoenix Aviation Limited (Petition 125 of 2018) [2025] KEELRC 1488 (KLR)

Employment and Labour Relations Court
22 May 2025
LNLINNET NDOLO
2,761 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The Petitioner, employed by the Respondent from 1st September 1994 and rising to General Manager, petitioned for unlawful termination and discrimination. After Frontier Services Group acquired shares in the Respondent, the Petitioner received a 3-month termination notice from FSG which he served out, later resigning as Accountable Manager in 2015. In mid-2017 the Respondent announced a Voluntary Early Retirement (VER) programme. The Petitioner applied for VER on 7th July 2017, and relied on a schedule showing his exit date as 30th September 2017. He claimed entitlement to Kshs. 17,937,520.25 under the VER package but was instead persuaded to execute a Settlement Agreement on 27th September 2017 for Kshs. 10,000,000 plus September 2017 salary, which he signed and was paid in full. He sought declarations that the Agreement was illegal, null and void for coercion, undue influence and discrimination contrary to Articles 27(4) & (5) and 41(1) of the Constitution and Section 5(3)(b) of the Employment Act, plus Kshs. 7,937,520.25, damages, interest and costs. The Respondent contended the VER application was rejected as his exit costs were prohibitive, the Kshs. 10,000,000 was his own proposal, and he was estopped. Linnet Ndolo, J found no evidence of force or threat; the Agreement was a mutual termination binding on the parties, and undue influence required proof higher than balance of probabilities. The Petitioner also breached the rule against approbating and reprobating by retaining the Agreement's proceeds. The Petition was dismissed with costs to the Respondent.

Key legal issues

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01

Coercion and undue influence in execution of the Settlement Agreement

Holding

Not proved; the Petitioner, a senior employee, executed the Agreement and received full payment without evidence of force or threat

Reasoning

The court applied the definition of coercion from Black's Law Dictionary and found that apart from the complaint that his VER application was rejected, the Petitioner adduced no evidence of force or threat. Clause 4 of the Agreement fully released the Respondent, and the Petitioner's seniority made it implausible that he signed terms he did not accept.

p. 6
02

Discrimination contrary to Articles 27(4) & (5), 41(1) and Section 5(3)(b) of the Employment Act

Holding

Not established; the Petitioner's VER application was in fact rejected and he negotiated a separate exit

Reasoning

The Respondent maintained discretion to accept or decline VER applications, and the Petitioner's application was rejected because the cost of his exit was prohibitive given his high salary. The Kshs. 10,000,000 figure was the Petitioner's own proposal accepted by the Board. No differential treatment violative of the constitutional provisions was proved.

p. 5
03

Efficacy and binding nature of the Settlement Agreement

Holding

The Agreement is binding and conclusively settles the dispute absent proof of fraud, coercion or undue influence

Reasoning

Relying on Kithusi, Patel and Barasa, the court held that a settlement/separation agreement becomes enforceable on signature and binds the parties unless assailed on grounds that would vitiate any contract. None was proved, and the Petitioner retained the proceeds, breaching the approbate-and-reprobate rule.

p. 7

Legal principles established

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  • A settlement agreement between an employer and employee is a binding contract, viti-able only by coercion, fraud, mistake, misrepresentation or undue influence, and undue influence must be proved to a standard higher than balance of probabilities
  • A party cannot challenge a settlement agreement while retaining its proceeds - the rule against approbating and reprobating

Court orders

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  1. 1.The Petition dated 20th November 2018 is dismissed with costs to the Respondent

Authorities

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Legislation

  • Constitution of KenyaArticle 27(4) & (5)
  • Constitution of KenyaArticle 41(1)
  • Employment ActSection 5(3)(b)

Cases cited (4)

  • Alfred Nzomo Kithusi v Hillcrest Investments Limited
    [2012] eKLR
  • Patel & another v MJC & another (Suing as the guardians of PJP)
    [2022] KECA 364 (KLR)
  • Barasa v Opibus Ltd
    [2022] KEELRC 13119 (KLR)
  • Sheila Kiplangat v Unilever Tea Kenya Limited
    [2022] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act and Constitution (Articles 27, 41) - not expressly cited as to the Court's own 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, "Barrito v Phoenix Aviation Limited (Petition 125 of 2018) [2025] KEELRC 1488 (KLR)", Case Analysis (2025). Petition dated 20th November 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1488/eng@2025-05-22

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