Ngayu v Unilever Tea Kenya Ltd

3. In the impugned judgment dated 20th January 2022, Makau, J. found that the respondent had not complied with the mandatory provisions of Section 40 of the Act relating to redundancy. Nevertheless, the learned judge dismissed the appellant's claim on the ground that she executed a discharge voucher. 4. Dissatised by the said verdict, the appellant lodged this appeal essentially faulting the learned judge for: (a) nding that the discharge voucher absolved the respondent from its statutory obligations as stipulated by Section 40 of the Act; (b) nding that the discharge voucher was binding upon the parties despite having concluded that the appellant’s termination was unfair; (c) failing to acknowledge the fact that violation of Section 40 of the Act leads to circumstances that constitute undue inuence when the appellant was executing the discharge voucher; (d) failing to consider the presumption that there is no equality of bargaining strength after termination between the employer and the employee and in the circumstances the learned judge should have disregarded the discharge voucher; (e) failing to invoke Section 119 of the Evidence act that allows the court to make presumptions. In this case, the circumstances warranted a presumption that the discharge voucher was signed under duress given the fact that it was established that provisions of Section 40 of the Act were violated. 5. The appellant prays for orders that this appeal be allowed; the impugned judgment be set aside, and judgment be entered in terms of her memorandum of claim dated 7th June 2022 and that she be awarded the costs of the appeal. 6. In support of the appeal, the appellant’s counsel Mr. Kirui adopted his written submissions dated 22nd June 2026. The crux of his submissions is that a discharge voucher cannot override statutory rights, and that parties cannot contract outside a statutory provision enacted to protect employees. He argued that the purpose of the Employment Act would be defeated if parties were to be allowed to ignore statutory enactments. Counsel cited Thomas De Larue (K) Ltd vs. David Opondo Omutelema [2013] eKLR to urge that compliance with Section 40 of the Act is mandatory, therefore, the learned judge erred by allowing the discharge voucher to supersede mandatory statutory provisions. Counsel also faulted the learned judge for failing to examine the circumstances under which the discharge voucher was signed. He argued that a discharge voucher can only be valid if it was voluntarily signed. He contended that the appellant had been terminated and she lacked bargaining power. He also contended that the court should have inferred duress. Counsel argued that the Employment Law is aimed at protecting employees from unfair labour practices. 7. The respondent’s counsel Ms Sheila Onyango highlighted her written submissions dated 24th June 2026 basically urging that the discharge voucher fully discharged the respondent from any further or other claims. In support of this assertion, counsel cited Trinity Prime Investment Limited vs. Insurance Company Limited [2015] KECA 793 (KLR) which underscored that execution of a discharge voucher constitutes a contract if it is free of misrepresentation or fraud. Counsel also relied on Coastal Bottlers Ltd vs. Mithika (Civil Appeal No. 21 of 2017) [2018] 523 (KLR) (7TH June 2018) (Judgment) which underscored the need for the court to establish whether the discharge voucher was signed voluntarily. 8. Also, counsel cited several decisions rendered by ELRC among them Kishawi vs. Continental Agventure Limited [2026] KEELRC 1439 (KLR) to urge that a party disputing the discharge voucher must adduce evidence to demonstrate that he did not sign it voluntarily. Counsel also cited Kili Plantation Limited vs. Karimi (Civil Appeal E039 of 2023) [2026] KECA 910 (KLR) (15 May 2026) (Judgment) in support of the proposition that a court of law cannot re-write terms of a contract entered into voluntarily. Counsel maintained that once the trial court armed the validity of the discharge voucher, it was unnecessary to delve into the merits or otherwise of the dispute. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/2008/eng@2026-10-02 2

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9. We start this determination by recalling that this Court has rmly and consistently held that an appellate court will not entertain new issues, grounds or claims that were not raised, argued, and determined by the trial court. In Kenya Commercial Bank Ltd vs. James Osede [1982] eKLR, this Court emphasized that “it is not permissible for matters and issues not raised at the trial court to be raised for the rst time on appeal... permitting an issue to be raised for the rst time... is improper, as the appellant had no fair notice of this issue. Such an issue should not be decided on appeal.” 10. In GRD vs. Republic [2025] KECA 59 (KLR), this Court re- emphasized that the primary role of an appellate court is to review how the trial court determined the dispute based on the issues presented to it. An appellate court cannot usurp the function of a trial court by evaluating brand-new arguments that skipped the trial court’s evaluation entirely. In Antony Francis Wareham t/a Wareham & 2 Others vs. Kenya Post Oce Savings Bank [2004] eKLR this Court underscored that parties are strictly bound by their pleadings and the case they ran at the lower court. An appellate body is not an avenue to reengineer or substitute an entirely fresh theory of the case after losing at the trial level. 11. In her grounds of appeal, the appellant faults the trial court for failing to consider the presumption that there was no equality of bargaining strength after termination between the employer and the employee and in the circumstances the learned judge should have disregarded the discharge voucher. She also faults the learned judge for failing to invoke Section 119 of the Evidence Act that allows the court to make presumptions. The appellant contends that the circumstances of this case warranted a presumption that the discharge voucher was signed under duress given the fact that it was established that provisions of Section 40 of the Act were violated. In his submissions, the appellant’s counsel faulted the learned judge for failing to examine the circumstances under which the discharge voucher was signed. He also argued that discharge voucher can only be valid if it was voluntarily signed. He contended that the appellant had been terminated and she lacked bargaining power. 12. We have carefully read the appellants statement of claim, her witness statement which she adopted and indeed the entire record. In these documents and in her evidence in court, the appellant never mentioned any of the above issues. The alleged duress and or bargaining power are being introduced for the rst time in this appeal. Before the trial court the appellant did not claim that she was coerced into signing the voucher. Duress is fundamentally an issue of fact that must be specically pleaded and strictly proved by way of evidence. Because courts operate on the presumption that adult parties enter contracts or engage in conduct voluntarily, any claim that a party's free will was completely overborne by illegitimate pressure or threats cannot simply be asserted in the abstract; it must be pleaded, and substantiated through meticulous factual proof. (See Kamau vs. Kevian Kenya Ltd [2023] KEELRC). 13. An appellant cannot seek to rebuild, re-engineer, or substitute their case on appeal by raising entirely new grounds. A party is strictly bound by their pleadings and the case they presented before the trial court. Allowing an appellant to formulate a new legal theory or introduce fresh claims at the appellate stage is rejected because it litigates a completely dierent case from the one the trial court decided. (See Interatcon Ltd vs. Shital Bhandari [2014] eKLR). 14. We now turn to the merits or otherwise of this appeal. This appeal will turn on one pivotal issue, which is, whether an employee who is paid his/her dues upon termination of employment, and executes a discharge voucher accepting the amount paid in full and nal settlement of his dues, can subsequently le a suit against the same employer citing further claims in respect of the same employment relationship. 15. This Court has consistently armed that a duly executed discharge voucher constitutes a valid, binding contract between the parties. Once a party voluntarily signs a voucher acknowledging receipt of funds in full and nal settlement, they are estopped from raising further claims arising from that matter, https://new.kenyalaw.org/akn/ke/judgment/keca/2026/2008/eng@2026-10-02 3

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unless they can prove a recognized vitiating factor like fraud, coercion, or misrepresentation. Courts view these documents through the lenses of the sanctity of contract (pacta sunt servanda) and the public policy imperative to bring nality to disputes. Unless an employee can prove that the waiver was signed under duress, fraud, or misrepresentation, the agreement validly extinguishes all existing and future statutory and contractual claims. 16. The constitutional court of South Africa in Gbenga-Oluwatoye vs. Reckitt Benckiser South Africa (Pty) Limited and Another [2016] ZACC 33 armed that full and nal settlement clauses which explicitly include a waiver of the right to seek judicial redress before Courts are valid, lawful and fully consistent with public policy. The Court held that "when parties settle an existing dispute in full and nal settlement, none should be released from an undertaking seriously and willingly embraced." It ruled that allowing a party to walk away from a contractually agreed waiver would undermine the critical utility of settling disputes out of court. A textually clear "discharge voucher" constitutes a legal compromise. A compromise acts as a complete defense to any subsequent legal action based on the original dispute. Once the employee signs o admitting that the payment satises all claims, the original obligations are legally extinguished. 17. If the text of the settlement or discharge voucher explicitly bars any future labor or civil claims, the employee cannot argue that they only intended to settle a portion of their claims (such as immediate severance) while keeping the right to sue for unfair dismissal or outstanding bonuses. 18. While the courts treat these waivers as watertight, they will allow an employee to validly sue only if the employee can satisfy a strict burden of proof regarding the following exceptions. These are; (a) proven duress. For example, if the employer threatened an unlawful act (e.g., physically threatening the employee or withholding legally vested statutory funds unless they signed), the discharge voucher will be declared voidable. (b) fraud/misrepresentation. The contract is nullied due to lack of genuine consensus. (c) ambiguity text. The court will interpret the ambiguity against the employer (contra proferentem), allowing claims to proceed. As mentioned earlier, the appellant did not plead duress or undue inuence in her pleadings or her evidence. None of the above vitiating factors were established in this case. 19. Perhaps we can add that nancial pressure is not a recognized ground for setting aside a consent. The Labour Appeal Court of South Africa in Filander vs. Overberg District Municipality [2016] ZALCCT 21 claried that normal nancial pressure or a desire to receive a quick cash payout does not equate to legal duress. For a waiver to be set aside on the grounds of duress, the employee must prove that the employer made an unlawful threat that caused imminent fear. Simply stating "I signed because I needed the money" is legally insucient to undo a signed discharge voucher. 20. Arising from our analysis of the issues discussed above and the conclusions arrived at, it is evident that this appeal is devoid of merit. Accordingly, we dismiss it with costs to the respondent. The upshot is that the judgment and decree of the Employment and Labour Relations Court delivered on 20th January 2022 in Kericho ELRC Cause No. 15 of 2020 is hereby upheld. DATED AND DELIVERED AT NAKURU THIS 2ND DAY OF OCTOBER, 2026. J. MATIVO ................................ JUDGE OF APPEAL MURUNGI B. KAIRARIA ................................ https://new.kenyalaw.org/akn/ke/judgment/keca/2026/2008/eng@2026-10-02 4

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JUDGE OF APPEAL AHMED ISSACK ................................ JUDGE OF APPEAL I certify that this is a true copy of the original. Signed. DEPUTY REGISTRAR. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/2008/eng@2026-10-02 5

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