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ELRCPartially AllowedMemorandum of Claim dated 28th June 2022· [2025] KEELRC 2032 (KLR)

Mwangi v Kevian Kenya Limited (Employment and Labour Relations Cause E456 of 2022) [2025] KEELRC 2032 (KLR)

Employment and Labour Relations Court
25 June 2025
1,387 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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A Kenyan court ruled that signing a discharge voucher cannot shield an employer from claims of unfair termination under the Employment Act.

What this practically means

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Executive summary

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The Claimant, employed as Logistics Manager on 1st July 2021 on a one-year contract with a three-month probationary period at Kshs.120,000 per month, was summarily terminated on 9th September 2021 for alleged unsatisfactory performance. He sued for Kshs.1,320,000 being ten months' salary for the balance of the contract plus one month in lieu of notice, interest, a certificate of service and costs. The Respondent defended the termination as lawful under probationary terms permitting termination on two weeks' notice, alleging poor performance and insubordination, and relied on a discharge voucher signed on 16th September 2021 as a waiver of further claims. The court framed four issues. On the first, it distinguished the authorities upholding discharge vouchers, holding that statutory protections under sections 41 and 45 of the Employment Act cannot be negated contractually, so the voucher did not absolve the Respondent. On the second, it found the termination both substantively and procedurally unfair: no performance evaluation system or documented warnings were produced, the show-cause letters lacked specificity, and the Claimant was dismissed without a proper hearing, probationary status notwithstanding. The claimant was accordingly held entitled to relief. The court awarded one month's salary in lieu of notice (Kshs.120,000) and six months' salary as compensation for unlawful termination (Kshs.720,000), totalling Kshs.840,000, ordered issuance of a Certificate of Service within thirty days, and awarded costs to the Claimant. Judgment was delivered by D. K. Njagi Marete, Judge, on 25th June 2025.

Key legal issues

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01

Effect of a discharge voucher on statutory claims

Holding

The signing of the discharge voucher did not discharge or absolve the Respondent of its statutory obligations.

Reasoning

The court distinguished the authorities cited by the Respondent upholding discharge vouchers, noting that here the claimant alleged procedural unfairness. Statutory protections under sections 41 and 45 of the Employment Act cannot be contracted out of; a voucher does not automatically bar redress where the termination was procedurally or substantively flawed.

p. 3
02

Whether the termination was wrongful, unfair and unlawful

Holding

The termination was substantively and procedurally unfair.

Reasoning

Termination must be both substantively justified and procedurally fair. The Respondent alleged poor performance and insubordination but produced no performance evaluation system or documented warnings; the show-cause letters lacked specificity. The claimant was summarily dismissed without a proper hearing, and probationary status did not exempt the employer from procedural fairness.

p. 3
03

Probationary contracts and statutory protections

Holding

Probationary contracts do not exclude the protections of sections 41 and 45 of the Employment Act.

Reasoning

Relying on Monica Munira Kibuchi and National Bank of Kenya v Samuel Ngugu Mutonya, the court held that even probationary terminations require adherence to basic fairness, including explanation of allegations and an opportunity to respond, and that the contractual clause permitting two weeks' notice was misplaced as a defence to the absence of a hearing.

p. 3

Legal principles established

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  • Section 45 of the Employment Act prohibits unfair termination and no contractual clause or discharge voucher can negate this statutory protection.
  • Probationary employees are entitled to procedural fairness under Section 41 of the Employment Act.
  • Termination for poor performance requires proof of an established performance evaluation system and prior warnings.

Court orders

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  1. 1.One (1) month salary in lieu of notice of Kshs.120,000.00
  2. 2.Six (6) months salary as compensation for unlawful termination of employment of Kshs.720,000.00, total award Kshs.840,000.00
  3. 3.The Respondent is ordered to issue the Claimant with a Certificate of Service in thirty (30) days
  4. 4.The costs of this cause shall be borne by the Respondent

Authorities

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Legislation

  • Employment Act, 2007Section 44(4)
  • Employment Act, 2007Section 41
  • Employment Act, 2007Section 45

Cases cited (6)

  • Monica Munira Kibuchi & 6 Others v Mount Kenya University
    [2021] eKLR
  • Sheila Kiplangat v Unilever Tea Kenya Limited
    [2022] eKLR
  • Geofirey Emojong Emasu v H. Young & Co. [E.A.] Limited
    [2022] eKLR
  • Walter Ogal Anuro v Teachers Service Commission
    [2013] eKLR
  • Jane Samba Mukala v Ol Tukai Lodge Limited
    [2013] eKLR
  • National Bank of Kenya v Samuel Ngugu Mutonya
    [2019] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007

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, "Mwangi v Kevian Kenya Limited (Employment and Labour Relations Cause E456 of 2022) [2025] KEELRC 2032 (KLR)", Case Analysis (2025). Memorandum of Claim dated 28th June 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2032/eng@2025-06-25

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