Gitaari v Kenya Hospital Association t/a The Nairobi Hospital (Cause E898 of 2021) [2024] KEELRC 1846 (KLR)
The bottom line
#Kenya's Employment Court ruled that an employee who voluntarily signed a mutual separation agreement and took its money cannot later claim unfair termination.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Claimant was terminated by the Respondent or whether the parties ended the employment relationship through a Mutual Separation Agreement
- 2.Whether the Mutual Separation Agreement was unlawful, coerced or vitiated by duress and undue influence
- 3.Whether the Claimant's constitutional rights to fair labour practices, fair administrative action and fair hearing were violated
- 4.Whether the Claimant was discriminated against by being kept in an acting position for 3 years
- 5.Whether the Claimant was entitled to the reliefs sought
Key legal issues
#Whether the Claimant was unfairly terminated or exited via a binding Mutual Separation Agreement
The exit was by a voluntary, binding MSA; the unfair termination claim fails
The Claimant was given the draft MSA, negotiated improvements, signed it and was paid terminal dues under it. Although a disciplinary process had been initiated via a show cause letter, the MSA became a soft landing. The Claimant had every right to refuse the MSA and insist on the disciplinary process; having elected the MSA route and received its proceeds, he cannot allege coercion or unfairness.
Whether the MSA was vitiated by duress, coercion or undue influence
No coercion was proved; the Claimant was given time, negotiated terms and signed voluntarily
The court found the Claimant was issued the draft MSA, given time to consider it, made suggestions which were incorporated, and the engrossed document was signed by both parties who then paid the Claimant his dues. Nothing was alleged or exhibited showing he protested the turn of events or was coerced into signing.
Approbate and reprobate
The Claimant cannot accept MSA proceeds yet refuse to be bound by it
Following Beatrice Kananu Imathiu v British American Tobacco (K) Ltd, the court held that no one is allowed to pick and choose only the favourable aspects of a transaction and reject the rest. The Claimant accepted payments under the MSA, making his claim unsustainable and inequitable.
Legal principles established
#- A party who voluntarily enters a mutual separation agreement, participates in crafting it and accepts its proceeds cannot turn around to challenge it as unfair; no one may approbate and reprobate at the same time.
- A mutual separation agreement is a binding contract which can only be vitiated by pleaded and proved fraud, coercion, duress or undue influence.
Court orders
#- 1.The suit is dismissed with costs
- 2.It is so ordered
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Article 162(2) of the Constitution (Labour and industrial relations jurisdiction); references to the Employment Act, 2007
Relief refused
#Declarations that the termination was unfair and that the MSA amounted to unfair termination/unlawful ouster of statutory reliefs
The Claimant voluntarily participated in the MSA and accepted its proceeds and cannot approbate and reprobate
Damages for unfair termination, notice pay, severance pay, bonus, leave, acting allowance and compensation for rights violations
The suit having been dismissed for lack of merit, no reliefs were granted
Costs
The suit is dismissed with costs to the Respondent
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
In any event, the claimant had every right to refuse the MSA and insist on the disciplinary process. He cannot be heard to elect to take the MSA route, receive proceeds arising therefrom and turn around and allege the process was unfair and that he was coerced into it.
the mutual separation agreement entered between the parties herein was a legally binding contract and only elements of fraud, coercion, duress or undue infiuence can vitiate such the contract if pleaded and more importantly cogent evidence adduced to prove such beyond balance of probabilities.
The suit is therefore found without merit and is hereby dismissed with costs.
A decision to resolve a disciplinary issue through other means such as MSA or resignation of an employee usually becomes a soft landing.
Issues in the judgment
#The judgment does not state the names of the parties or the case number; the excerpt opens directly with the claimant's pleadings.
Stray character appears at paragraph 54 heading.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Ouma v Shree Swaminarayan Academy (Cause E827 of 2022) [2025] KEELRC 639 (KLR)[2025] KEELRC 639 (KLR)28 Feb 2025
Cite this brief
#Cite this brief
Caselaw, "Gitaari v Kenya Hospital Association t/a The Nairobi Hospital (Cause E898 of 2021) [2024] KEELRC 1846 (KLR)", Case Analysis (2024). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1846/eng@2024-07-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.