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ELRCDismissed

Gitaari v Kenya Hospital Association t/a The Nairobi Hospital (Cause E898 of 2021) [2024] KEELRC 1846 (KLR)

Employment and Labour Relations Court
17 July 2024
6,098 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~24 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The Claimant, formerly Procurement and Supplies Manager and later Acting Head of Support Services of the Respondent hospital, sued for unfair termination. He contended that after suspension on 30th January 2020 over alleged bid rigging and a show cause letter to which he responded, the Respondent abandoned the disciplinary process, coerced him while he was vulnerable during the COVID-19 pandemic to sign a Mutual Separation Agreement on 23rd March 2020, withdrew his acting allowance, and misrepresented the separation as retrenchment, causing his bank loan insurer to decline payment. He sought declarations, damages, 12 months' compensation, notice pay, severance, bonus, leave and other reliefs. The Respondent maintained the separation was voluntary and mutual, that the Claimant negotiated improved terms, and that he was bound by the MSA and estopped from suing. The court found the Claimant was given the draft MSA, proposed changes which were incorporated, signed it voluntarily and accepted its proceeds, with no evidence of protest or coercion. Applying Beatrice Kananu Imathiu v British American Tobacco, the court held that the Claimant, having elected the MSA route and accepted payment, could not approbate and reprobate by alleging unfair termination. The disciplinary process initiated through the show cause letter was treated as superseded by the MSA. The suit was found without merit and dismissed with costs on 17th July 2024.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Claimant was terminated by the Respondent or whether the parties ended the employment relationship through a Mutual Separation Agreement
  2. 2.Whether the Mutual Separation Agreement was unlawful, coerced or vitiated by duress and undue influence
  3. 3.Whether the Claimant's constitutional rights to fair labour practices, fair administrative action and fair hearing were violated
  4. 4.Whether the Claimant was discriminated against by being kept in an acting position for 3 years
  5. 5.Whether the Claimant was entitled to the reliefs sought

Key legal issues

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01

Whether the Claimant was unfairly terminated or exited via a binding Mutual Separation Agreement

Holding

The exit was by a voluntary, binding MSA; the unfair termination claim fails

Reasoning

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.

p. 11
02

Whether the MSA was vitiated by duress, coercion or undue influence

Holding

No coercion was proved; the Claimant was given time, negotiated terms and signed voluntarily

Reasoning

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.

p. 11
03

Approbate and reprobate

Holding

The Claimant cannot accept MSA proceeds yet refuse to be bound by it

Reasoning

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.

p. 11

Legal principles established

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  • 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

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  1. 1.The suit is dismissed with costs
  2. 2.It is so ordered

The bench

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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

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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

p. 11

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

p. 11

Costs

The suit is dismissed with costs to the Respondent

Quotable passages

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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.
p. 11Binding nature of mutual separation agreement
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.
p. 10Vitiation of MSA - pleading and proof requirements
The suit is therefore found without merit and is hereby dismissed with costs.
p. 11Disposition
A decision to resolve a disciplinary issue through other means such as MSA or resignation of an employee usually becomes a soft landing.
p. 11MSA as soft landing from disciplinary process

Issues in the judgment

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minor

The judgment does not state the names of the parties or the case number; the excerpt opens directly with the claimant's pleadings.

minor

Stray character appears at paragraph 54 heading.

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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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.